At today’s press briefing, White House spokesman Trent Duffy was asked about a story in today’s New York Times, which reported that Bush’s warrantless domestic spying program could undermine key terrorism prosecutions:

Q The New York Times reports today that there are several legal challenges based on the NSA wiretaps. Are you concerned that these challenges could jeopardize the cases against people you guys have already described as very bad people?

MR. DUFFY: …[W]e decline to comment on any pending cases, but I don’t think it should serve as any surprise that defense attorneys are looking at ways to represent their clients; that’s what defense attorneys do.

Duffy’s right, criminal defense lawyers are looking for ways that their clients can avoid conviction. And Bush’s actions have given them an easy way to do it. The program violated federal criminal law — the Foreign Intelligence Surveillance Act. As a result, any information collected by the program is inadmissible in court. (This principle is called the exclusionary rule.) If that information is critical to the government’s case, a guilty terrorist might be found not guilty.

What’s worse, if what the administration says is true, none of this was necessary. If all of the surveillance targeted people associated with al Qaeda, as the administration claims, it would have been easily approved by the FISA court. That process would not have delayed the surveillance since a warrant can be obtained up to 72 hours after the surveillance starts.

The Bush administration says the program is justified because it made us safer. The opposite appears to be true. The program has made us less safe by needlessly complicating the prosecution of terrorist suspects.

The Washington Post reports that FISA Court judges will soon convene to address the legality of President Bush’s domestic spying program.

The story contains an important point that strikes at the heart of the Bush administration’s case that the spying program benefited our national security. According to several FISA judges quoted by the Post, there are serious concerns that “legally suspect information” acquired through warrantless surveillance was used to obtain FISA warrants, potentially rendering the warrants illegitimate.

Two intelligence sources familiar with the plan said Kollar-Kotelly expects top-ranking officials from the National Security Agency and the Justice Department to outline the classified program to the members.

The judges could, depending on their level of satisfaction with the answers, demand that the Justice Department produce proof that previous wiretaps were not tainted, according to government officials knowledgeable about the FISA court. Warrants obtained through secret surveillance could be thrown into question. One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president’s suggestion that he has the power to bypass the court.

This possibility is entirely the fault of President Bush and his senior officials. They knew precisely what the rules were, they broke them, and as a result, they have jeopardized countless legitimate anti-terrorism investigations.

Today, Matt Drudge “uncovered” a photograph (which is posted on the White House website) of President Bush signing the Patriot Act in 2001. Drudge says it proves Harry Reid is a hypocrite:

[S]tanding over the President’s shoulder with a smile on his face is Democratic Senate Minority Harry Reid (D-NV)! Reid is currently leading efforts in the Senate to block the renewal of the Patriot Act.

In fact, Reid’s position on the Patriot Act has been completely consistent. In 2001, when he voted for the act, Reid supported “sunsetting” the controversial provisions to ensure they weren’t being used to violate civil liberties, or to investigate crimes not related to terrorism.

As it turns out, the powers issued by the Patriot Act had been abused — and one of the most blatant abuses was in Reid’s home state of Nevada, where the act was used to investigate a strip-club owner. Since those stories came to light more than two years ago, Reid has supported modifications to the Patriot Act that are not now in the bill:

11/11/03: Sen. Harry Reid, D-Nev., has said he is supportive of sunset provisions that will cause many parts of the Patriot Act to expire in 2005. [Las Vegas Review-Journal]

12/15/03: Senator Harry Reid, Democrat of Nevada, said he was not aware that the money-laundering provision was in the bill when he voted for it in late 2001. He said he did not expect the bill to be as widely used as it has been in domestic investigations that had little or nothing to do with international terrorism. He said he thought the bill was about thwarting terrorists, not, as he put it, “naked women.” [New York Times]

Developing…

Vice President Cheney from tonight’s Nightline:

It’s the kind of capability [that], if we’d had before 9/11, might have led us to be able to prevent 9/11.

We had two 9/11 terrorists in San Diego prior to the attack in contact with al Qaeda sources outside the U.S. We didn’t know it. The 9/11 Commission talks about it. If we’d had this capability, then we might well have been able to stop it.

This is false and sensational. The secret surveillance program authorized by President Bush did not provide the National Security Agency any new “capability.”

The NSA “already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests.” Indeed, from 1979 to 2002, the FISA court issued 15,264 surveillance warrants. Not a single warrant application was rejected.

Nothing in the law pre-9/11 prevented the federal government from conducting surveillance operations on terrorists. Cheney simply can’t resist using that tragedy to shield himself from criticism.

President Bush claimed tonight that a redeployment of U.S. forces out of Iraq would undermine their morale:

It is also important for every American to understand the consequences of pulling out of Iraq before our work is done. … We would undermine the morale of our troops – by betraying the cause for which they have sacrificed.

Bush is wrong — staying the course indefinitely is not the way to improve the morale of our soldiers. Calls for a redeployment of forces that would strengthen our national security do not undermine our soldiers. What hurts troop morale is this administration’s flailing military strategy in Iraq. President Bush needs to listen carefully to the comments of the soldiers on the ground who spoke today to Vice President Cheney:

“From our perspective, we don’t see much as far as gains,” said Marine Cpl. Bradley Warren, the first to question Cheney in a round-table discussion with about 30 military members. “We’re looking at small-picture stuff, not many gains.”

Infact, Bush’s suggestion that U.S. forces have not completed their mission is false. A true patriot, decorated veteran Rep. Jack Murtha (D-PA) said it best today:

What the troops get disappointed [about] is they don’t have the equipment they need, didn’t have enough troops when they went in in the first place, inadequate forces to transition to peace. That’s the thing to demoralize them. …The military has accomplished its mission, done everything we asked them to do. Nation building is not part of the mission a military does well.

Disagreeing with the President on Iraq is not defeatism. It’s patriotism.

Sen. Russ Feingold (D-WI) was the lone dissenting vote in the U.S. Senate when the Patriot Act was rushed through Congress after September 11. This month, he led the campaign to prevent the Act’s renewal. He pledged to filibuster, and today, he won.

Just prior to the vote, Feingold addressed his fellow senators, keying off this morning’s New York Times report on the Bush administration’s extensive (and potentially illegal) domestic wiretapping practices:

I don’t want to hear again from the Attorney General or anyone on this floor that this government has shown it can be trusted to use the power we give it with restraint and care. This shocking revelation ought to send a chill down the spine of every Senator and every American.

Watch it:

(Quicktime)

Full transcript below: Read more

Yesterday the House of Representatives voted overwhelmingly for a motion urging that the McCain Anti-Torture Amendment be included in the Defense Authorization Bill now being negotiated between members of the House and Senate. The motion was offered by Rep. John Murtha (D-PA), and passed 308-122.

The motion is not binding on the House conferees appointed to negotiate with the Senate, but the fact that each house has now gone on record in strong support of the Anti-Torture Amendment sends a powerful message, and creates even more momentum behind it.

Reports today suggest that the White House may finally have recognized that its efforts to weaken or derail the McCain amendment will not succeed. If so, that is very good news indeed.

However, the administration has not relented in its efforts to undercut the amendment by other means. It is continuing to press for changes to a related provision sponsored by Senators Graham and Levin which was inserted into the Senate bill with no hearings and virtually no debate. Read more

In a last ditch effort to salvage the WTO meeting in Hong Kong, rich countries are trying to buy their way to a face-saving deal.

This round of trade negotiations is called the Doha Development Round for a reason – because it is supposed to be about alleviating poverty in the developing world. But instead of trying to create a real agreement that would be true to this name – rich countries have failed to bring anything meaningful to the table.

So now, with the meeting on the verge of collapse, trade negotiators spent most of the day madly scrambling to cobble together what they are calling a “development package.”

In the proposed “development package” ministers from rich countries pledged to increase so-called “aid for trade” grants. While these commitments are welcome, they are simply an effort by rich countries – the U.S., EU, Japan – to prevent the round from completely falling apart. Speaker after speaker from developing countries warned the conference (and expressed their frustration in private conversations) that aid-for-trade was a supplement, and not a substitute, for meaningful reform of the dysfunctional global trading system. Read more

Last night on Fox News, Brit Hume argued that waterboarding – an interrogation technique dating back to the Inquisition in which the prisoner “has water poured over him to make him think he is about to drown” – does not constitute torture:

Torture has an actual definition, and it means extreme physical pain, it also means the kind of thing associated with the failure of your organs. Now waterboarding is hair-raising and frightening, terrifying as it obviously is, would not appear to fit that category.

(Watch in Quicktime)

The Justice Department has explicitly rejected Hume’s “definition” of torture. In a 2002 memo, then White House counsel Alberto Gonzales argued that to be defined as torture, punishments “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The Justice Department’s Office of Legal Counsel later revised this definition, but Hume apparently never got the memo.

Also, former torture victim Sen. John McCain (R-AZ) disagrees:

For instance, there has been considerable press attention to a tactic called “waterboarding” “¦ In my view, to make someone believe that you are killing him by drowning is no different than holding a pistol to his head and firing a blank. I believe that it is torture, very exquisite torture.

To send a signal to Hume and right-wingers that this kind of “exquisite torture” should stop, take action.

[Our guest blogger, Patrick Leahy (D-VT), is the ranking member of the Senate Judiciary Committee.]

The Bush’s Administration’s tendencies to unilateralism – aided and abetted by conservative leaders in Congress – have produced some of the worst decisions, scandals and excesses of the last four years.

It’s happening again with the rewrite of the USA PATRIOT Act, but you may not be aware of the details. Read more

With Congress on the verge of passing the sweeping McCain amendment, the Bush administration has taken its drive to permit torture to new depths.

The basis of the McCain amendment is establishing the Army Field Manual on Intelligence Interrogation as the uniform standard for interrogation. That manual explicitly prohibits the use of so-called “coercive interrogation techniques.” As former Army interrogator Peter Bauer has written, “the standard interrogation techniques found in the US Army Field Manual 34-52 were far more effective than such abusive behavior as stress positions, sensory deprivation, and humiliation. We obtained more information – and more reliable information – with our basic skills than we did with even days of harsh treatment.”

Realizing this, the Pentagon has one-upped McCain, and simply rewritten the manual:

The Army has approved a new, classified set of interrogation methods that may complicate negotiations over legislation proposed by Senator John McCain to bar cruel and inhumane treatment of detainees in American custody, military officials said Tuesday.

The techniques are included in a 10-page classified addendum to a new Army field manual that was forwarded this week to Stephen A. Cambone, the under secretary of defense for intelligence policy, for final approval, they said.

The addendum provides dozens of examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations.

The political fall-out from this move is sure to be significant. The New York Times notes that McCain will likely be “furious” with the changes, and an unnamed Pentagon official is quoted, “This is a stick in McCain’s eye. It goes right up to the edge. He’s not going to be comfortable with this.”

The idea that we have a “Vice President for Torture” now appears quaint. What we really have is an entire administration, openly and unapologetically for torture.

There are now 80,000 names on the U.S. government’s secret terror (“no-fly”) watchlist, according to a new report. Before 9/11, just 16 names were on the list, and by the end of the year the number jumped to 1,000. By 2002, the list had 40,000 names.

But the list hasn’t been used to just stop terrorists. Some of the names on that list belong to U.S. lawmakers:

Sen. Ted Kennedy (D-MA), 2004:

U.S. Sen. Edward M. “Ted” Kennedy said yesterday that he was stopped and questioned at airports on the East Coast five times in March because his name appeared on the government’s secret “no-fly” list. [Federal air security officials] acknowledged being embarrassed that it took the senator and his staff more than three weeks to get his name removed.

Rep. John D. Lewis (D-GA), 2004:

Rep. John Lewis, D – Georgia, a nine-term congressman famous for his civil rights work with the Rev. Martin Luther King Jr., has been stopped 35 to 40 times over the past year, his office said…Lewis contacted the Department of Transportation, the Department of Homeland Security and executives at various airlines in a so-far fruitless effort to get his name off the list, said spokeswoman Brenda Jones.

Rep. Don Young (R-AK), 2004:

Rep. Donald E. Young (R-Alaska), said he was flagged on the “watch list” when the airline computer system mistook him for a man on the list named Donald Lee Young.

Feeling safer?

The McCain anti-torture amendment has twice been passed by the U.S. Senate. The Senate voted 90-9 to include it in the “must pass” Defense Department Appropriations bill for FY 2006; for good measure, senators later attached the amendment to the Defense Department Authorization bill as well.

Despite this overwhelming support, the amendment’s final passage is not assured. The White House and congressional conservatives have developed a two-pronged strategy to prevent the amendment from becoming law.

1) Vice President Cheney has been seeking changes that would effectively gut the amendment, by exempting CIA interrogations from compliance with the requirements.

Even before the latest revelations about detainees being held at secret CIA “black sites,” supporters of the McCain amendment had made clear that such an exemption would render the amendment worse than current law.

The latest reports suggest that the White House is finally getting the message, and National Security Adviser Stephen Hadley has been negotiating with Senator McCain in hopes of securing modest but potentially problematic changes intended to minimize the exposure of U.S. intelligence officers to prosecution for alleged abuses. Those negotiations could be concluded within the next few days.

2) The Administration has also threatened a veto of each of the two Defense bills if the McCain amendment remains attached to them. At this point it remains unclear which of the two bills containing the McCain amendment will move first.

The House could move to appoint conferees on the appropriations bill before the end of the week. Meanwhile, the Armed Services Committees are laboring to resolve this and dozens of other issues regarding the authorization bill in hopes of passing it at any time.

One likely scenario is for conservatives to allow the authorization bill to pass with the McCain amendment attached and intact, at which point appropriators would seek to strip it from the “must pass” appropriations bill before it also passes. This would enable the President to sign the appropriations bill but make good his threat to veto the authorization, thus killing the amendment.

To forestall that risk, appropriations conferees who support the McCain amendment will seek to block any effort to drop the amendment from the appropriations bill unless the White House promises that the President to sign the authorization bill as well.

Whichever bill reaches the finish line first, it looks increasingly likely that the McCain amendment will become law. Our nation and the world will be the better for it.

– Mark Agrast

Former Deputy Secretary of Defense Paul Wolfowitz strongly suggested yesterday that, had we known Saddam did not possess WMD, the United States would not invaded Iraq. From the AP:

“If somebody could have given you a Lloyd’s of London guarantee that weapons of mass destruction would not possibly be used, one would have contemplated much more support for internal Iraqi opposition and not having the United States take the job on the way we did.”

“It was a sense that the greatest danger in taking this man on would be that he would use them,” said Wolfowitz of former Iraqi leader Saddam Hussein. “If you could have given us a guarantee that they wouldn’t have been used, there would have been policy options available probably.“

This is a sharp departure from the White House line. Current members of the administration still claim that WMD were just one of many reasons that the United States invaded Iraq. From an 11/15/05 op-ed by Deputy National Security Advisor J.D. Crouch:

Some administration critics believe Operation Iraqi Freedom was strictly about weapons of mass destruction. The reality is that Saddam Hussein’s WMD programs were only one reason for the liberation of Iraq.

When Wolfowitz was a member of the administration, that’s what he said too. From the AP 5/23/03:

Wolfowitz insisted in the interview, and in Singapore on Friday, that there had always been three major concerns.

“One was weapons of mass destruction, second was terrorism, and the third … was the abuse of Iraqis by their own government,” Wolfowitz said at the sidelines of the Asia Security Conference in Singapore.

“And in a sense there was a fourth overriding one, which was the connection between those first two, the connection between the weapons of mass destruction and terrorism. All three of those have been there, they’ve always been part of the rationale and I think it’s been very clear.”

(HT: HuffPost)

Early returns on President Bush’s desperate pre-holiday campaign to convince the American public that he has a plan for victory in Iraq are out. Much like his Social Security offensive this past spring, President Bush is failing to fundamentally change how Americans feel about Iraq.

Results from the latest The New York Times/CBS News poll, which began interviewing Americans after President Bush delivered his first speech in the latest Iraq campaign:

– Six in ten Americans disapprove of President Bush’s handling of Iraq, which is essentially unchanged since public disapproval of his handling of Iraq increased above 50 percent earlier this fall.

– Fully 70 percent of Americans do not believe President Bush has a clear plan for getting American troops out of Iraq.

– Nearly six in ten Americans (58 percent) believe that President Bush is making things sound better in Iraq than they really are, compared to one third (33 percent) who say that President Bush is accurately describing the situation in Iraq.

Though these numbers are bound to shift slightly in President Bush’s favor as the public relations campaign continues, they are not likely to alter the overall structure of American public opinion on Iraq for two main reasons.

First, a majority of Americans no longer find President Bush honest and trustworthy. Actions and results will speak louder than words to a skeptical American public, especially with a president who is no longer seen as a credible leader by a majority of the American public.

Second, and related to the first, the overall trend since President Bush’s invasion of Iraq has been driven by events on the ground in Iraq.

- Brian Katulis

Before the war, we were promised by the Bush administration that Iraqi oil revenues would finance the bulk of their reconstruction. Here’s Deputy Secretary of Defense Paul Wolfowitz on 3/27/03:

The oil revenues of Iraq could bring between $50 and $100 billion over the course of the next two or three years”¦We’re dealing with a country that can really finance its own reconstruction, and relatively soon.

Now we are being told that the oil revenues might not pay for any of the reconstruction – it’s completely up to the Iraqis. Scott McClellan today:

QUESTION: Iraq’s reconstruction costs — how much of that should be paid for by Iraq with its oil revenues?

MCCLELLAN: Well, Iraq’s oil revenues are for the Iraqi people. It is overseen by an Iraqi ministry and all those revenues go to help the Iraqi people.

McClellan later instructs the reporter to look for the National Strategy for Victory In Iraq because it “talks about the oil sector and the progress that’s being made there.” Actually, that document acknowledges “oil production is slightly down from a year ago.”

Maybe it’s appropriate for the United States to finance Iraqi reconstruction, but the administration should have been upfront with the American people from the beginning. U.S. taxpayers have already spent $18 billion on Iraqi reconstruction, with no end in sight.

In his speech this morning, President Bush blamed the media for ignoring the “quiet, steady progress” of reconstruction efforts in Iraq:

This is quiet, steady progress. It doesn’t always make the headlines in the evening news. But it is real and it is important. And it is unmistakable to those who see it close-up.

Afterwards, MSNBC’s Chris Matthews endorsed the remarks:

David Gregory, I was impressed again by the fact that he was taking a shot at the media, saying you are not going to hear about this economic development progress on the evening news.

Of course, it’s easy for Chris Matthews to bemoan the particulars of Iraq coverage from his Washington television studio. The truth is, the same problem that’s hampering Iraq’s reconstruction is also preventing journalists from covering the occassional openings of schools and hospitals: unrelenting insurgent violence. Rajiv Chandrasekaran, former Washington Post Baghdad bureau chief, explains:

I would posit that a lot of these projects — people say, oh, why didn’t you cover the opening of this new power station in Mahmudiyah? Well, it’s “the triangle of death.” You know, as a bureau chief there, I wasn’t going to risk putting my people’s lives on the line to go down for a photo op. As nice as it might have been, it’s simply too unsafe to get around and tell a lot of these stories. And so a lot of the coverage is, unfortunately, skewed by the fact that the on-the-ground realities of committing journalism in Iraq are such that you really can’t get out and do much of anything.

The important issue here isn’t press coverage — it’s that the Bush administration’s military strategy in Iraq is failing.

The “biggest threat facing this country is weapons of mass destruction in the hands of a terrorist network,” Bush said during last year’s Presidential debate. “And that’s why proliferation is one of the centerpieces of a multi-prong strategy to make the country safer… And we’ve been effective.”

The 9/11 Public Discourse Project — formerly known as the 9/11 Commission — just released an assessment of Bush’s progress on the issue. Despite his rhetoric, they aren’t impressed:

The 9/11 Commission concluded that the administration’s “current efforts fall far short of what we need to do” and recommends President Bush “request the personnel and resources, and provide the domestic and international leadership, to secure all weapons grade nuclear material as soon as possible.” Good idea.

In a speech today, Secretary of Defense Donald Rumsfeld offered some pointers on how to assess the situation in Iraq.

Don’t pay attention to terrorist attacks:

“To be responsible, one needs to stop defining success in Iraq as the absence of terrorist attacks,” Rumsfeld said in remarks at the Johns Hopkins School of Advanced International Studies.

Don’t pay attention to U.S. fatalities:

Pressure on the administration over the war has grown as the number of U.S. military deaths has surpassed 2,100. Rumsfeld said a focus on that number would be as misleading as concentrating on the large numbers of deaths at battles like Iwo Jima during World War II, without acknowledging the victories eventually achieved.

Don’t pay attention to the media:

Rumsfeld also delivered a broadside against the media, saying that in the present era of the 24-hour new cycle, events in Iraq may be reported too quickly and without context, and at times with little substantiation.

The only thing to pay attention to, it seems, is whatever Rumsfeld tells you.

On Sunday’s ABC This Week, Stephen Hadley acknowledged that President Bush has not yet ordered the shut-down of the Pentagon’s propaganda campaign in Iraq.

STEPHANOPOULOS: Has he ordered the program shut down?

HADLEY: He’s asked Secretary Rumsfeld to look at it. It’s clear from the comments that have been made so far, that the issue is whether that program is something that’s inconsistent with the policy guidance. And if it is inconsistent with policy guidance it will be shut down.

STEPHANOPOULOS: Well, it would be inconsistent to secretly pay Iraqi journalists, wouldn’t it?

HADLEY: Look, we want a free media. We want truth. That’s the whole point of this. We need to get the story about what’s happening out. The truthful story about what’s happening to Iraq to Iraqis, to the American people. That’s what we ought to be doing. This kind of practices is inconsistent with that. It’s not the kind of policy that the, that the Americans want to pursue.

The dishonest tactics used by the Penatgon in the campaign are already well established: the source of the stories (the U.S. military) were kept secret, “absolute truth was not an essential element” in the stories, and the AP and Reuters photos used in the stories did not necessarily depict the events described. This seems inconsistent with any type of “truthful story” the United States is trying to tell.

When will Bush to live up to his rhetoric and shut down the program?