Last night, Pulitzer Prize-winning journalists James Risen and Eric Lichtblau reported in the New York Times that “the National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year.” According to intelligence officials, the problems grew “out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers.”

In July 2008, as Congress — including then-Sen. Barack Obama — moved towards approving the re-write of surveillance law, progressives mobilized against the legislation. As Glenn Greenwald points out, many of the concerns held by progressives at the time are proven by the NYT report. Here’s how Greenwald summarized the opposition in June 2008:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President’s power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it “fails to protect the privacy of law-abiding Americans at home” because “the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power.” Rep. Rush Holt — who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers — condemned the bill because it vests the power to decide who are the “bad guys” in the very people who do the spying.

On July 3rd, Obama explained his support for the “improved yet imperfect bill” by saying that as president he would have his Attorney General “conduct a comprehensive review of all our surveillance programs” in order to make further recommendations on protecting civil liberties. According to the Lichtblau and Risen, the “overcollection” of domestic collection was “detected” during a “periodic review” of the NSA’s activities:

As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.

Sen. Russ Feingold (D-WI), who opposed the 2008 FISA Amendment Act, issued a statement today calling on Congress to “get to work fixing these laws that have eroded the privacy and civil liberties of law-abiding citizens.” Feingold also called on the Obama administration to “declassify certain aspects of how these authorities have been used so that the American people can better understand their scope and impact.”

In an intriguing post yesterday discussing this article on democracy in the Middle East, Andrew Exum wrote that “one of the tragedies of the neo-conservative era (2001-2006) is that it got the ends right and the means so very, very wrong — thus discrediting the ends in both the Arabic-speaking world and in domestic U.S. politics. How the hell we Americans managed to discredit the idea of democracy promotion at home and abroad is anyone’s guess.”

It’s a question well worth asking, and one that I think neocon-in-good-standing Reuel Marc Gerecht’s item in today’s Wall Street Journal goes quite a ways toward answering, by demonstrating precisely the sort of half-read arrogance that got us here. Taking issue with President Obama’s charm offensive toward Muslims, Gerecht mounts what I think can fairly be described as a rudeness-counteroffensive, insisting that “we — the West — are the unrivaled agent of change in the Middle East.”

Modern Islamic history — including the Bush years — ought to tell us that questions non-Muslims pose can provoke healthy discussions. [...]

Although it is now politically incorrect to say so, George W. Bush’s democratic rhetoric energized the discussion of representative government and human rights abroad. Democracy advocates and the anti-authoritarian voices in Arab lands have never been so hopeful as they were between 2002, when democracy promotion began to germinate within the White House, and 2006, when the administration gave up on people power in the Middle East (except in Iraq).

I don’t think it’s really “politically incorrect” to say that Bush’s democratic rhetoric energized the discussion of representative government and human rights abroad as much as it is simply dishonest not to mention that most of that discussion revolved around how incompetent and counterproductive his actual policies for doing these things were. Burning my neighbor’s house down might provoke a healthy discussion of how better to fight fires, but that doesn’t mean that setting fire to my neighbor’s house was the correct policy.

While it may be true that anti-authoritarian voices in Arab lands “have never been so hopeful as they were” between 2002 and 2006, those voices have also never been so marginalized as they have been now in the wake of Bush’s war on terror. As the New America Foundation’s Michael Cohen and Maria Figueroa Kupcu write in a new report, Revitalizing America’s Democracy Promotion, “not only has the Freedom Agenda failed to fulfill its promise, it has likely set back America’s overall democracy promotion efforts.”

The agenda was compromised by the perception that America’s rhetoric was not always matched by its actions, either at home or abroad. Meanwhile, the conflation of democracy promotion with regime change in Iraq has further undermined the U.S. effort.

By offering democratic reform as a component to the war on terror, which many in the Muslim world see –rightly or wrongly — as a war against Islam, Bush alienated at the outset scores of potential reformist allies. By then promoting the war in Iraq as a showpiece for his broader agenda (“This could be your country! Who’s in?”) he discredited it even more. (Despite attempts by the war’s remaining supporters to present Iraq’s struggling, violence-plagued sort-of democracy as a beacon to the Arab world, you’d be very hard pressed to find actual Arab democrats who agree. It’s not hard to understand why.)

There was nothing particularly unique or original in neoconservatives’ critique of the Arab world’s political malaise — what was unique was neoconservatives’ insistence that the brutal application of American power was the only thing that could shake the Arab world out of that malaise. I think the results speak for themselves. And, given the fact that they saw it necessary to rebrand themselves, I think the neocons, at least the smart ones, do too.

Earlier this month, a Spanish court said it would consider opening a criminal case against six Bush administration officials “over allegations they gave legal cover for torture at Guantanamo.” The Spanish attorney general said today that he would not recommend a case, but Judge Baltazar Garzon “will decide whether to press ahead with a criminal investigation.”

Thus far, Obama administration officials have tried to skirt questions on the matter. On Tuesday, Press Secretary Robert Gibbs responded, “We may have some reaction based on what ultimately happens.” Today, CNN’s Juan Carlos Lopez asked Obama about the investigation ahead of his trip to Mexico. Obama repeated his desire to look forward:

OBAMA: I’m a strong believer that it’s important to look forward and not backwards, and to remind ourselves that we do have very real security threats out there. So I have not had direct conversations with the Spanish government about these issues. My team has been in communications with them.

Obama did, however, say he was aware of a “process” moving forward in the U.S. to “understand” what happened under Bush. Notably, he did not endorse or rule out an investigation or commission:

I think that we are moving a process forward here in the United States to understand what happened, but also to focus on how we make sure that the manner in which we operate currently is consistent with our values and our traditions.

Obama concluded: “And so my sense is, is that this will be worked out over time.” Watch it:

It’s unclear what process Obama is referring to. Sen. Pat Leahy (D-VT) has prominently called for a truth commission to investigate Bush-era abuses, but he is uncertain whether it can proceed. House Judiciary Chairman John Conyers (D-MI) recently called for “congressional investigations,” “a blue ribbon commission, or “independent criminal probes to be conducted by federal prosecutors.”

Attorney General Eric Holder told Katie Couric last week that a commission is something that “Senator Leahy, the people in the Senate Judiciary Committee, the President will ultimately have to decide.”

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