THE BUSH administration's distortion, for political purposes, of the Democratic position on warrantless surveillance is loathsome. Despite the best efforts of Karl Rove, the White House deputy chief of staff, and Ken Mehlman, the Republican National Committee chairman, to make it seem otherwise, Democrats are not opposed to vigorous, effective surveillance that could uncover terrorist activity. Nor are the concerns that they are expressing unique to their party. Republican Sens. John McCain (Ariz.), Arlen Specter (Pa.), Chuck Hagel (Neb.), Lindsey O. Graham (S.C.) and Sam Brownback (Kan.) have expressed legal doubts about the surveillance program. Do they, too, have a "pre-9/11 worldview," as Mr. Rove said of the Democrats?

Believing there should be constraints on unchecked executive power is not the same as being weak-kneed about the war against terrorism. Critics are suggesting that President Bush should have gone through normal procedures for conducting such surveillance or asked Congress to provide clear legal authority for the National Security Agency activity. They are not contending that such surveillance shouldn't be conducted at all. No leading Democrat has argued for barring this kind of potentially useful technique.

But you wouldn't know that to listen to the GOP spin. "Let me be as clear as I can be -- President Bush believes if al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," Mr. Rove said at the Republican National Committee winter meeting last week. "Some important Democrats clearly disagree." Mr. Mehlman named names. "Do Nancy Pelosi and Howard Dean really think that when the NSA is listening in on terrorists planning attacks on America, they need to hang up when those terrorists dial their sleeper cells inside the United States?" he asked.

Maybe, as a matter of crass political calculation, Mr. Rove and Mr. Mehlman are correct that Democrats criticizing warrantless wiretaps will pay a price in the November elections. We don't pretend to know. What we do know is that the country is in the midst of an important debate about the reach of presidential power and the scope of civil liberties in wartime. For Rove & Co. to try to turn this into just another partisan political skewer discredits their administration and their party.

The U.S. Army in Iraq has at least twice seized and jailed the wives of suspected insurgents in hopes of "leveraging" their husbands into surrender, U.S. military documents show.

In one case, a secretive task force locked up the young mother of a nursing baby, a U.S. intelligence officer reported. In the case of a second detainee, one American colonel suggested to another that they catch her husband by tacking a note to the family's door telling him "to come get his wife."

The issue of female detentions in Iraq has taken on a higher profile since kidnappers seized American journalist Jill Carroll on Jan. 7 and threatened to kill her unless all Iraqi women detainees are freed.

The U.S. military on Thursday freed five of what it said were 11 women among the 14,000 detainees currently held in the 2 1/2-year-old insurgency. All were accused of "aiding terrorists or planting explosives," but an Iraqi government commission found that evidence was lacking.

Iraqi human rights activist Hind al-Salehi contends that U.S. anti-insurgent units, coming up empty-handed in raids on suspects' houses, have at times detained wives to pressure men into turning themselves in.

Iraq's deputy justice minister, Busho Ibrahim Ali, dismissed such claims, saying hostage-holding was a tactic used under the ousted Saddam Hussein dictatorship, and "we are not Saddam." A U.S. command spokesman in Baghdad, Lt. Col. Barry Johnson, said only Iraqis who pose an "imperative threat" are held in long-term U.S.-run detention facilities.

But documents describing two 2004 episodes tell a different story as far as short-term detentions by local U.S. units. The documents are among hundreds the Pentagon has released periodically under U.S. court order to meet an American Civil Liberties Union request for information on detention practices.

In one memo, a civilian Pentagon intelligence officer described what happened when he took part in a raid on an Iraqi suspect's house in Tarmiya, northwest of Baghdad, on May 9, 2004. The raid involved Task Force (TF) 6-26, a secretive military unit formed to handle high-profile targets.

"During the pre-operation brief it was recommended by TF personnel that if the wife were present, she be detained and held in order to leverage the primary target's surrender," wrote the 14-year veteran officer.

He said he objected, but when they raided the house the team leader, a senior sergeant, seized her anyway.

"The 28-year-old woman had three young children at the house, one being as young as six months and still nursing," the intelligence officer wrote. She was held for two days and was released after he complained, he said.

Like most names in the released documents, the officer's signature is blacked out on this for-the-record memorandum about his complaint.

Of this case, command spokesman Johnson said he could not judge, months later, the factors that led to the woman's detention.

The second episode, in June 2004, is found in sketchy detail in e-mail exchanges among six U.S. Army colonels, discussing an undisclosed number of female detainees held in northern Iraq by the Stryker Brigade of the 2nd Infantry Division.

The first message, from a military police colonel, advised staff officers of the U.S. northern command that the Iraqi police would not take control of the jailed women without charges being brought against them.

In a second e-mail, a command staff officer asked an officer of the unit holding the women, "What are you guys doing to try to get the husband — have you tacked a note on the door and challenged him to come get his wife?"

Two days later, the brigade's deputy commander advised the higher command, "As each day goes by, I get more input that these gals have some info and/or will result in getting the husband."

He went on, "These ladies fought back extremely hard during the original detention. They have shown indications of deceit and misinformation."

The command staff colonel wrote in reply, referring to a commanding general, "CG wants the husband."

The released e-mails stop there, and the women's eventual status could not be immediately determined.

Of this episode, Johnson said, "It is clear the unit believed the females detained had substantial knowledge of insurgent activity and warranted being held."

___

On the Net:

First document: http://www.aclu.org/torturefoia/released/t2614_2616.pdf

E-mail exchange: http://www.aclu.org/projects/foiasearch/pdf/DOD044843.pdf

By Jonathan Zimmerman, JONATHAN ZIMMERMAN teaches history and education at New York University. He is the author of "Whose America? Culture Wars in the Public Schools."

ONCE UPON A TIME, Americans lived by a few simple maxims: God, country and family. Children respected their parents; students listened to their teachers; citizens followed the law. Then along came the 1960s, when liberal elites undermined traditional sources of authority. College kids smoked dope, feminists burned their bras and black militants burned down the cities. So now we have welfare, divorce, crime and a sick society that has lost its moral compass.

That's the Republican Party line on the 1960s, when everything good turned sour. Well, maybe not everything. Amid the tumult and violence, a few Americans held fast to timeless American values. And that's where our next prospective Supreme Court justice comes in.

Samuel A. Alito Jr., you see, has become the GOP's anti-'60s cultural hero. Republican supporters seized eagerly on Alito's opening remarks at his confirmation hearing, when he compared his traditional upbringing in Hamilton Township, N.J., to the chaos and unrest he encountered at Princeton University.

Hamilton was "an unpretentious, down-to-earth community," Alito recalled, where kids went to school in the morning and played baseball in the afternoon. But at Princeton, where Alito enrolled in 1968, he found something else. "I saw some very smart people and very privileged people behaving irresponsibly," Alito said at the hearing. "I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community."

Alito's story meshes perfectly with the larger Republican narrative about the 1960s: A lot of bad things happened, but a few good people resisted them. "Judge Alito is a paragon of the oldfashioned working-class ethic," gushed the New York Times' David Brooks. "In a culture that celebrates the rebel … he respects tradition, order and authority."

To Michael Barone of U.S. News & World Report, Alito symbolizes the "dutiful people" who adhered to tradition when the "beautiful people" attacked it. "While Manhattan glitterati thronged Leonard Bernstein's apartment to celebrate the murderous Black Panthers," Barone declared, "ordinary people … were going to work, raising their families and teaching their children to obey lawful authority and work their way up in the world."

There's only one problem with this GOP version of postwar history: It isn't true. The feel-good Republican vision of pre-'60s America is a myth. Urban kids were already using drugs in the 1950s, when J. Edgar Hoover called heroin a menace to American society. The FBI was busily harassing gays, who formed visible communities in many cities. And urban poverty was on the rise, even as most middle-class Americans looked the other away.

Most of all, a vicious racism infected enormous swaths of American society. And not just in the "Jim Crow" South, which is the story we know best, but in the urban North as well. In such cities as Chicago and Detroit, whites organized to keep African Americans out of their neighborhoods. They rallied outside city housing agencies to bar black tenants; they picketed white homeowners who sold property to black buyers. Even more, as University of Pennsylvania historian Thomas Sugrue has shown, whites often assaulted and vandalized blacks who did move into white areas. Were all whites racist? Of course not. But we can no longer pretend that they uniformly "respected authority" and "followed the law," as Brooks and Barone maintain.

While turning a blind eye to the problems of the 1950s, Republicans also exaggerate the disorder and conflict of the 1960s. In 1967, the year before Alito came to campus, more than half of Princeton's students said they supported American involvement in the Vietnam War. Visiting Princeton that spring, New Republic reporter Dotson Rader was shocked at how little political discussion or dissent he encountered.

"I wandered around the campus and heard the band play for the Princeton-Yale game and saw the students with their dates wander toward the stadium," Rader wrote, "as if no war was being fought and no people were in prison for opposing it, as if Harlem and Watts and the Mississippi Delta country did not exist, as if the world were just and men did not die senselessly."

To be sure, student protests would escalate after Alito arrived. In May 1970, as Alito was finishing his sophomore year, students staged a campuswide strike to protest the escalation of the Vietnam War into Cambodia.

Did some Princeton students behave "irresponsibly," as Alito recalled? Of course they did. Several days after the May 1970 strike, for example, students took over an off-campus office where Princeton faculty members performed defense-related research. They painted the walls with graffiti, set fire to the office's air-conditioning unit and littered the grounds with trash.

But such incidents were rare. As journalist Don Oberdorfer documents in his history of Princeton, most protest was orderly and peaceful. Campus demonstrations reflected the nation's best democratic traditions: free speech, debate and, yes, responsibility.

And that brings us back to Alito. Despite his paeans to the decency of his childhood neighbors, did he know that many hard-working white communities were working hard to keep blacks out? And when he indicted Princeton students for behaving irresponsibly, was he including their peaceful protests against the Vietnam War?

Although he doesn't remember his membership in the conservative Concerned Alumni for Princeton, Alito does remember his youth and college years — indeed, he freely described them in his opening statement. So the rest of us should feel free to inquire about what he actually meant.

By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne

Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program.^[1] Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).^[2]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect "signals intelligence" on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.

1.

Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited it in FISA

The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or e-mail communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires—e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.

The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al-Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping US phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance...and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war—a more formal step than an authorization such as the AUMF —the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization.^[3] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.

In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization:

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is...to disrespect the whole legislative process and the constitutional division of authority between President and Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).

Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance...may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "‘the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141–142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).

Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment.^[4] The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.^[5]

Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked war-rantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.^[6]

2.

Construing FISA to prohibit warrantless domestic wiretapping does not raise any serious constitutional question, while construing the AUMF to authorize such wiretapping would raise serious questions under the Fourth Amendment

The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because there otherwise might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.

A. FISA's Limitations are consistent with the President's Article II role

We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal—subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President...to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).

But FISA specifically repealed that provision, FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.^[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA.^[8] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture,^[9] and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."^[10] But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).^[11]

B. Construing the AUMF to authorize warrantless domestic wiretapping would raise serious constitutional questions

The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al-Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.

The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance —individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States District Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).

Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, at 15 (1978) (citing, inter alia, Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), in which the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power).

Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion.

The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al-Qaeda, a member of an organization affiliated with al-Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda."^[12] Under this reasoning, a US citizen living here who received a phone call from another US citizen who attends a mosque that the administration believes is "supportive" of al-Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.^[13]

We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.

Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office^[14]

David Cole, Georgetown University Law Center

Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General

Ronald Dworkin, NYU Law School

Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution

Philip B. Heymann, Harvard Law School, former Deputy Attorney General

Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ

Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ

Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel

William S. Sessions, former Director, FBI, former Chief United States District Judge

Geoffrey Stone, Professor of Law and former Provost, University of Chicago

Kathleen Sullivan, Professor and former Dean, Stanford Law School

Laurence H. Tribe, Harvard Law School

William Van Alstyne, William & Mary Law School, former Justice Department attorney

Notes

^[1] The Justice Department letter can be found at www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf.

^[2] More detail about the operation of FISA can be found in Congressional Research Service, "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (January 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.

^[3] "The Conferees intend that this [15-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency.... The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter." H.R. Conf. Rep. No. 95-1720, at 34 (1978).

^[4] Attorney General Gonzales stated, "We have had discussions with Congress in the past—certain members of Congress—as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible." Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (December 19, 2005), available at www.whitehouse.gov/news/releases/2005/12/20051219-1.html.

^[5] The administration had a convenient vehicle for seeking any such amendment in the USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272, enacted in October 2001. The Patriot Act amended FISA in several respects, including in sections 218 (allowing FISA wiretaps in criminal investigations) and 215 (popularly known as the "libraries provision"). Yet the administration did not ask Congress to amend FISA to authorize the warrantless electronic surveillance at issue here.

^[6] The DOJ attempts to draw an analogy between FISA and 18 U.S.C. § 4001(a), which provides that the United States may not detain a US citizen "except pursuant to an act of Congress." The DOJ argues that just as the AUMF was deemed to authorize the detention of Hamdi, 542 U.S. at 519, so the AUMF satisfies FISA's requirement that electronic surveillance be "authorized by statute." DOJ Letter at 3-4. The analogy is inapt. As noted above, FISA specifically limits warrantless domestic wartime surveillance to the first fifteen days of the conflict, and 18 U.S.C. § 2511(2)(f) specifies that existing law is the "exclusive means" for domestic wiretapping. Section 4001(a), by contrast, neither expressly addresses detention of the enemy during wartime nor attempts to create an exclusive mechanism for detention. Moreover, the analogy overlooks the carefully limited holding and rationale of the Hamdi plurality, which found the AUMF to be an "explicit congressional authorization for the detention of individuals in the narrow category we describe...who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network," and whom "Congress sought to target in passing the AUMF." 542 U.S. at 518. By the government's own admission, the NSA program is by no means so limited. See Gonzales/Hayden Press Briefing, supra note 4.

^[7] See, e.g., S. Rep. No. 95-604, pt. I, at 16 (1977) (Congress's assertion of power to regulate the President's authorization of electronic surveillance for foreign intelligence purposes was "concurred in by the Attorney General"); Foreign Intelligence Electronic Surveillance: Hearings Before the Subcomm. on Legislation of the House Permanent Select Comm. on Intelligence, 95th Cong., 2d Sess., at 31 (1978) (Letter from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, to Edward P. Boland, Chairman, House Permanent Select Comm. on Intelligence (Apr. 18, 1978)) ("it seems unreasonable to conclude that Congress, in the exercise of its powers in this area, may not vest in the courts the authority to approve intelligence surveillance").

^[8] Indeed, Article II imposes on the President the general obligation to enforce laws that Congress has validly enacted, including FISA: "he shall take Care that the Laws be faithfully executed..." (emphasis added). The use of the mandatory "shall" indicates that under our system of separation of powers, he is duty-bound to execute the provisions of FISA, not defy them.

^[9] See Memorandum from Jay S. Bybee, Assistant Attorney General, Department of Justice Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), at 31.

^[10] Memorandum from John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, to the Deputy Counsel to the President, Re: The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them (September 25, 2001), available at www.usdoj.gov/olc/warpowers925.htm (emphasis added).

^[11] Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).

^[12] See Gonzales/Hayden Press Briefing, supra note 4.

^[13] During consideration of FISA, the House of Representatives noted, "The decision as to the standards governing when and how foreign intelligence electronic surveillance should be conducted is and should be a political decision...properly made by the political branches of Government together, not adopted by one branch on its own and with no regard for the other. Under our Constitution legislation is the embodiment of just such political decisions." H.R. Conf. Rep. No. 95-1283, pt. 1, at 21-22.

Attorney General Griffin Bell supported FISA in part because "no matter how well intentioned or ingenious the persons in the Executive branch who formulate these measures, the crucible of the legislative process will ensure that the procedures will be affirmed by that branch of government which is more directly responsible to the electorate." Foreign Intelligence Surveillance Act of 1978: Hearings Before the Subcommittee on Intelligence and the Rights of Americans of the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 12 (1997).

^[14] Affiliations are noted for identification purposes only.

Broadcaster says serious news at risk

By JAN SJOSTROM , Daily News Arts Editor

Thursday, January 26, 2006

The anchorman whose boss once characterized him as ice compared with his successor's fire was anything but chilly in the impassioned speech he delivered Tuesday at The Society of the Four Arts.

"Truth no longer matters in the context of politics and, sadly, in the context of cable news," said Aaron Brown, whose four-year period as anchor of CNN's NewsNight ended in November, when network executives gave his job to Anderson Cooper in a bid to push the show's ratings closer to front-runner Fox News.

Brown said he tried to give viewers a balanced diet of light and serious news with NewsNight. "But I always knew when I got to the Brussels sprouts, I was on thin ice," he said.

When NewsNight spent four hours covering the arrest of actor Robert Blake for the murder of his wife, Brown received thousands of e-mails criticizing the amount of time the show spent on the story. Nevertheless, that show, which aired in April 2002, received the highest ratings of any program since NewsNight's coverage of the November 2001 crash of American Airlines flight 587.

"Television is the most perfect democracy," Brown said. "You sit there with your remote control and vote." The remotes click to another channel when serious news airs, but when the media covers the scandals surrounding Laci Peterson, the Runaway Bride or Michael Jackson, "there are no clicks then," the journalist said.

With the departure from the screen of the "titans" — Tom Brokaw, Peter Jennings and Dan Rather — who "resisted the temptations of their bosses to go for the ratings grab, it will be years before an anchorman or anchorwoman will have the clout to fight these battles," he said.

Brown has spent most of his 30-year career in television news. He's covered everything from the Columbine High School murders to the aftermath of the space shuttle Columbia disaster. But viewers may remember best his on-the-spot coverage of the terrorist attack on the World Trade Center.

He's shocked "by how unkind our world has become," he said. E-mail and talk radio appear to have given people the license to say anything, regardless of how cruel or false it may be, he said.

He cited the example of an e-mail faulting what the sender considered to be NewsNight's inadequate coverage of an anti-war protest in Washington, D.C. The note ended with, "I hope the violence visited on the people of Iraq will someday be visited on your children."

Those on the opposite side of the political spectrum are no more tolerant, Brown said. "Any criticism of the administration is regarded as hatred of the president and hatred of the country itself," he said.

Important issues, such as the prosecution of the war in Iraq at home and abroad, are being clouded over by "mud-wrestling" that skirts substance, he said. Consider what he called "the swift-boating of John Murtha," the Democratic congressman whose war record was smeared when he called for an exit strategy in Iraq. "Cable didn't search for the truth, but engaged in mock debates pitting those making the charges against Murtha's defenders," he said.

Many Americans on the left and the right aren't interested in the truth, but simply want news that confirms their viewpoints, he said. "You'd think that it's no more complex than good vs. evil," he said.

Journalists have fallen short in presenting important news in ways that allow viewers to see how it matters in their lives. But viewers must take up the battle as well, he said. "It's not enough to say you want serious news. You have to watch it. It isn't enough to say you want serious debate. You have to engage in it."

by BarbinMD

Thu Jan 26, 2006 at 09:35:47 AM PDT

If you circumvent a law, does that mean you've broken it? I'm not a lawyer (insert Holiday Inn Express joke here), but during today's press conference, it certainly seemed to me that George Bush admitted doing just that. In a follow-up question about the domestic spying program, Bush was asked:

The FISA law was implemented in 1978 in part because of revelations that the NSA was spying domestically. What is wrong with that law that you feel you have to circumvent it and as you just admitted, expand Presidential Powers.

Bush's Response?

May I, may I, may I, if I might. You said that I have to circumvent it. Uh...there is...wait a minute...that's a...there's something..it's like saying, you know, "you're breaking the law." I mean, I'm not. See, that's what you've got to understand, I'm upholding my duty and at the same time doing so under the law and with the Constitution behind me. That's just very important for you to understand. Secondly, the FISA law was written in 1978. We're having this discussion in 2006. It's a different world. And FISA is still an important tool. It's an important tool. And we still use that tool. But also...and we, and I looked and I said look, is it possible to conduct this program under the old law and people said it doesn't work in order to be able to do the job we expect us to do. And so that's why I made the decision I made. And uh, circumventing is a loaded word and I refuse to accept it because I believe what I'm doing is legally right.

A loaded word? An accurate one, anyway. Or so it seems to me. And btw, he called it an "old law." It's the current law of the land. And he broke it.

By Joel Bleifuss

Quietly, the war on terror, in which everything is permitted, has laid the ground work for the Bush administration to intrude into the political life of citizens.

Over the last several months, it has been revealed that the FBI, the Pentagon and the National Security Agency have each set up apparently independent covert operations to monitor the constitutionally protected political activities of citizens opposed to the Bush administration's war in Iraq.

2005 wasn't a very good year for Lady
Liberty. The FBI has been spying on Code
Pink, whose members protested at the
2004 Democratic National Convention.

The Washington Post discovered that under authority granted by the U.S. Patriot Act, the FBI has been issuing what are known as "national Security letters" that allow the bureau to spy on U.S. residents. The November 6 Post reported, "The FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing."

According to records obtained by the ACLU under a Freedom Of Information Act request, the FBI's targets included people involved in a "vegan community project" in Indianapolis, the Catholic Worker movement and its "semi-communistic ideology," Code Pink, the anti-war coalition United for Peace and Justice, Greenpeace and attendees of the Third National Organizing Conference on Iraq, which was held at Stanford University in May 2005. According to the documents, in some cases the FBI received information about those under surveillance from informers within the targeted groups.

Over at the Pentagon, the Counterintelligence Field Activity (CIFA) office, which was established in 2002, now employees more than 1,000 people. According to the Washington Post, CIFA has what the military calls "tasking authority" over the 4,000 people who work in Army, Navy and Air Force intelligence units. What CIFA does is not exactly clear, but in December, NBC reported it had "obtained a secret Pentagon database that indicates the U.S. military is collecting information on American peace activists and monitoring protests against the Iraq war." A document stamped "secret" reports, "We have noted increased communication between protest groups using the Internet," but not a "significant connection" between incidents, such as "recurring instigators" or "vehicle descriptions," which suggests the Pentagon has been monitoring e-mail and tracking anti-war activists by the cars they drive. The document is 400 pages long and lists 1,500 "suspicious incidents across the country over a 10-month period," including "four dozen anti-war meetings or protests, including one in Hollywood." Other groups targeted included The Truth Project, a Quaker group in Lake Worth, Fla., concerned about military recruitment in high schools, and a group at the University of California, Santa Cruz, protesting recruiters on campus.

Christopher Plye, a former Army intelligence officer who exposed Pentagon infiltration of the anti-war and civil rights movements during the Vietnam War, told NBC, "This is the J. Edgar Hoover Memorial Vacuum Cleaner. They're collecting everything."

And then there is President George W. Bush's secret presidential order that gave the National Security Agency (NSA) permission to monitor the international e-mail and phone calls of thousands of people inside the United States. The story was broken by New York Times reporter James Risen, who features Bush's decision to grant NSA authority to spy on Americans in his new book, State of War. He writes, "For the first time since the Watergate-era abuses, the NSA is spying on Americans again, and on a large scale. The Bush administration has swept aside nearly 30 years of rules and regulations and has secretly brought the NSA back into the business of domestic espionage."

And we have been down that road before: The FBI's surveillance of Martin Luther King, infiltration of the anti-Vietnam war and civil rights movements by federal agent provocateurs, three incidents of NSA spying, and, in 1972, Watergate, a covert operation that involved agents of the Nixon administration breaking into Democratic Party headquarters.

Responding to the resulting public outcry, Congress passed the Foreign Intelligence Surveillance Act (FISA) of 1978 that established the Foreign Intelligence Surveillance Court. The FISA court operates out of the Justice Department and approves administration requests for wiretaps by the NSA of people in the United States. It was this court that Bush circumvented when he secretly authorized NSA wiretaps.

These covert operations are a sign that the neoconservatives who set administration policy have adopted the policy of victory over all opponents by any means. (Or, as Senior Editor Kurt Vonnegut says, "Neoconservatism is entitlement to whatever is undefended at home or abroad.")

As a result, we now have a government that doesn't respect basic rules of constitutional government. Or, to put it another way, our government has redefined the Constitution in such a way as to justify its actions--and to provide legal protection for those who violate what used to be constitutional rights.

As with the war in Iraq, all of this has some people in the intelligence community worried. Hence, the leaks.

In his new book, Risen explains that his sources with knowledge of the NSA operation became whistle-blowers because they believed "that an investigation should be launched into the way the Bush administration has turned the intelligence community's most powerful tools against the American people."

And, as in the war with Iraq, the Bush administration strenuously justifies its actions, giving no quarter.

The administration provides two reasons why circumventing FISA and expanding the authority of NSA to spy within the United States was needed.

First, they argue that FISA courts were not adequate. But James Bamford, the foremost civilian authority on the NSA and author of two books, Body of Secrets and The Puzzle Palace, disagrees: "The FISA court is as big a rubber stamp as you can possibly get within the federal judiciary." Indeed, from 1979 through 2004, the NSA granted 18,761 warrants and rejected five. In 2004, 1,754 warrants were approved.

He told the Baltimore Sun, "Most of the people I've dealt with there had no idea this was going on, and they were very shocked and disappointed that suddenly they're back to where they were 30 years ago, dealing with questions of domestic spying. ... The eventual outcome will be a special prosecutor. ... Of course it's an impeachable offense."

Bush, Vice President Dick Cheney and others in the administration excuse their snooping by saying it could prevent future 9/11s. On December 17, when Bush confessed that he had expanded NSA's authority, he cited two of the hijackers who flew the jet into the Pentagon and who had phoned fellow members of Al Qaeda in Yemen while in the United States. He said, "But we didn't know they were here until it was too late. The authorization I gave the National Security Agency after September 11 helped address that problem." Cheney repeated this talking point on January 4, in a talk to the Heritage Foundation.

Like so many other Bush administration assertions used to justify policy, like those that got us into a war in Iraq, this one is false. And as with the war in Iraq, the canard has been exposed by patriots in the spy business.

Prior to 9/11, the NSA was already monitoring the number they phoned in Yemen and had the administration wanted to monitor calls in the United States, it could have easily gotten permission to do so from the FISA court.

A senior counter-terrorism official, speaking on the condition of anonymity, told the Los Angeles Times, "The NSA was well aware of how hot the number was ... and how it was a logistical hub for Al Qaeda and it was also calling the number in America half a dozen times after the [U.S.S.] Cole [was attacked] and before September 11." Another official told the paper, "It's total hubris ... It's arrogance by the people doing this. This is a 24-hour thing, and you can get these kind of warrants immediately. I think they are just being lazy."

Eleanor Hill, a former Pentagon inspector general and the staff director of the joint congressional inquiry into 9/11, said that members of Congress had repeatedly asked the administration to recommend reforms of FISA. "The question was always asked of these witnesses: 'What do you need?' ... There was plenty of time to raise this issue. You don't just take it upon yourself to circumvent FISA. That attitude ignores the absolutely critical need for oversight."

Yet the trump administration's trump card remains: terrorism. "This authorization is a vital toll in our war against the terrorists," said Bush.

The very terrifying nature of terrorism turns those who question the Bush wars on into enemies of the state. It is a message so powerful, that even those opposed to the administration can internalize it. As Angela Y. Davis observes in Abolition Democracy:

Simplistic political discourse a la Bush may not be so much a sign of the lack of presidential intelligence as it is a strategically important way to garner support for global war. What it does is disarm people. It belittles our critical capacities. It invites us to forget about criticism. I think this is one of the reasons why so many people, including progressive and radical people, in the immediate aftermath of 9/11, could not mobilize the moral resources to speak out against Bush.

A similar dynamic seems to be playing out with the domestic spying scandals. Surveillance of potential terrorists is necessary, therefore our rights take second place.

The administration makes no bones about this. Air Force Gen. Michael Hayden, as head of NSA, testified to Congress in 2002 that he met with his staff after 9/11: "I told them that free people always had to decide where to draw the line between their liberty and their security." Today, Hayden is the Principal Deputy Director of National Intelligence.

What's the common thread running through the past half-decade of Bush's presidency? What's the nexus between the Swift-boating of Kerry, the Swift-boating of Murtha, and the guilt-by-association between Democrats and terrorists? Why has a seemingly endless string of administration scandals faded into oblivion? Why do Democrats keep losing elections? It's this: the traditional media, the trusted media, the "neutral" media, have become the chief delivery mechanism of potent anti-Democratic and pro-Bush storylines. And the Democratic establishment appears to be either ignorant of this political quandary or unwilling to fight it.

There's a critical distinction to be made here: individual reporters may lean left, isolated news stories may be slanted against the administration. What I'm describing is the wholesale peddling by the "neutral" press of deep-seated narratives, memes, and soundbites: simple, targeted talking points that paint a picture of reality for the American public that favors the right and tarnishes the left.

You’ve heard the narratives: Bush is likable, Bush is a regular guy, Bush is firm, Bush is a religious man, Bush relishes a fight, Democrats are muddled, Democrats have no message, national security is Bush’s strength, terror attacks and terror threats help Bush (even though he presided over the worst attack ever on American soil), Democrats are weak on security, Democrats need to learn how to talk about values, Republicans favor a “strict interpretation” of the Constitution, and on and on.

A single storyline is more effective than a thousand stories. And a single storyline delivered by a “neutral” reporter is a hundred times more dangerous than a storyline delivered by an avowed partisan. Rightwingers can attack the media for criticizing Bush, can slam the New York Times for being liberal, but when the Times and the Post and CNN and MSNBC echo the ‘Bush stands firm’ mantra, it adds one more brick to a powerful pro-Bush edifice.

These narratives are woven so deeply into the fabric of news coverage that they have become second nature and have permeated the public psyche and are regurgitated in polls. (The polls are then used to strengthen the narratives.) They are delivered as affirmative statements, interrogatives, hypotheticals; they are discussed as fact and accepted as conventional wisdom; they are twisted, turned, shaped, reshaped, and fed to the American public in millions of little soundbites, captions, articles, editorials, news stories, and opinion pieces. They are inserted into the national dialogue as contagious memes that imprint the idea of Bush=strong/Dems=weak. And they are false.

What’s so dumbfounding to progressive netroots activists, who clearly see the role of the traditional media in perpetuating these storylines - and are taking concrete action (here, here, and here) to remedy the problem - is that Democratic politicians, strategists, and surrogates have internalized these narratives and play into them, publicly wringing their hands over how to fix their "muddled" message, how to deal with Bush’s "strength" on national security, how to talk about "values." It’s become a self-fulfilling cycle, with Democrats reinforcing anti-Dem myths because they can’t imagine any other explanation for the apparent lack of resonance of their message. Out of desperation, they resort to hackneyed, focus-grouped slogans in a vain attempt to break through the filter.

It’s simple: if your core values and beliefs and positions, no matter how reasonable, how mainstream, how correct, how ethical, are filtered to the public through the lens of a media that has inoculated the public against your message, and if the media is the public’s primary source of information, then NOTHING you say is going to break through and change that dynamic. Which explains, in large measure, the Dems’ sorry electoral failures.

There are a number of reasons why Democrats allow the media problem to fester. First, the “liberal” media mantra has been so pervasive that it is still accepted as fact by many beltway insiders. Republicans have mastered the art of institutional rage against the media, Democrats have not. Second, Democratic strategists haven’t learned how to distinguish between stories and storylines. (The insidious effect of infectious narratives, the power of inoculation techniques, the concept of memetics and the role of the Internet, are alien to the Democratic establishment. And I say that having been in the belly of that establishment during the 2004 election). Third, “blame the media” feels like a cop-out.

But this isn’t about “blaming the media” or excusing other strategic mistakes on the part of Democrats, it’s about understanding what happens when skillfully-crafted pro-GOP storylines are injected into the American bloodstream by the likes of Wolf Blitzer, Chris Matthews, Paula Zahn, Dana Milbank, Kyra Phillips, Cokie Roberts, Tom Brokaw, Jim VandeHei, Bob Schieffer, Bill Schneider, Tim Russert, Howard Fineman, Norah O'Donnell, Elizabeth Bumiller, Adam Nagourney, Bob Woodward, and their ilk, not to mention rabid partisans like Limbaugh, Coulter, and Hannity.

To understand the methodology of the story-telling media, look no further than two situations currently occupying the energy of netroots activists: Chris Matthews’ equating of bin Laden and Michael Moore and Tim Russert’s racially-tinged, guilt-by-association line of questioning in a recent interview with Barack Obama. In each instance, the meta-theme is that Democrats are terrorist-lite traitors, and the subtext is that Bush and Republicans are the true patriots. But while the netroots is blasting away at Matthews and Russert, the Democratic establishment is petrified at the thought of offending the Gang of 500. So far, only John Kerry and Louise Slaughter have weighed in on either scandal.

"Flip-flop" took hold as an anti-Kerry theme because it was repeated ad nauseum in the press. And mind you, reporters are far too sophisticated to simply deliver the meme as an accusation; they frame it as a question, they toss it in as an offhanded remark, they run a caption that says it for them, they use the language of Democratic duality and Republican unity, they use polls for cover, they play false equivalency games, they allow Republicans to repeat the narrative unhindered, and so on. This despite the fact that Bush contradicted himself on major policy issues and was a master ‘flip-flopper’ himself. Had the media fact-checked the assertion every time it popped up and had they called Bush a flip-flopper with the same brutal, methodical intensity, the race might have ended differently. One of the few chances Americans got to test the flip-flop meme was the debates, and we all know how those turned out.

The same holds true for the Swift-boat sliming of Kerry: much has been made of the Kerry campaign’s response or lack thereof, but there’s another angle less discussed: the story was a cable staple for days and weeks, unchecked. Had the cable nets and other media outlets covered that story with more balance, more dignity, more judiciousness, more responsibility, it would have been a sideshow. And this has nothing to do with deflecting blame - the Kerry campaign should have known that their enemy wasn't a vindictive crackpot like John O'Neill, but the many 'journalists' and media outlets who rammed the story down our collective gullets.

Similarly, the media helped reframe John Murtha’s call for a dramatic shift in strategy in Iraq as a policy of “cut and run” versus Bush’s “steadfastness.” Once again, the storyline trumps the story.

To illustrate the power of the media to shape public opinion, simply imagine what would happen if the cable nets and the print media and the elite punditocracy treated the warrantless spying scandal with the same round-the-clock intensity as the Swift-boating of Kerry or the Natalee Holloway disappearance. Suppose Lewinsky-style headlines blared about impeachment and presidential law-breaking. Suppose the question of the day on every cable net was, “Should Bush be impeached for violating the Constitution?” The media can create a crisis -- and can squelch one. The media can deliver narratives, they can frame events, they can shape the way Americans see the political landscape. A disproportionate amount of power is wielded by a handful of opinion-shapers, and when these individuals tell America a story that favors the right and marginalizes the left, the remedies are few.

Progressive bloggers and the millions of online activists whose conversations they shepherd are fighting to close the triangle. Sadly, Democrats will resist, out of fear. And the press will fight back, hard. Not to mention the anticipated wrath of the rightwing machine, built on the "liberal media" myth. Still, the latent power of the netroots is ignored at the political and media establishment's peril.

by David Sirota

Living out here in Montana, it has become very easy to spot storylines from the national media and Washington politicians that have positively no appreciation for the textured political views of the American public. It was John Stewart who said this week in a Daily Show interview with consummate Washington B.S. artist Fred Barnes that while people in Washington see things only in terms of Democrat vs. Republican, and "liberal" vs. "conservative" the rest of the country sees things at a much more gut level.

Take today's story by Ron Brownstein in the Los Angeles Times about President Bush's illegal behavior in ordering a domestic spying operation. Remember, I like Ron Brownstein - I think he is one of the few Beltway pundits who is nonpartisan and usually gets the storylines right. And in fairness, his story is more of a commentary on the spewers of B.S. he quotes than on his reporting. Nonetheless, his piece really ends up being a pristine example of how both the political chattering class and the media ramrod stories into the binary views they hold, but which the public does not.

Brownstein bases his piece, in part, on interviews Washington Democratic "strategists" - that class of professional election losers quoted regularly trying to prevent just about any courageous Democratic lawmakers from actually doing much of anything. Just look at yesterday's piece in Roll Call where you had this same Democratic cabal saying the party shouldn't mount an aggressive lobbying/ethics crackdown, or look back at the Iraq War where you had the Democratic strategic class saying it was good politics to just blindly follow the Bush administration's lies (incredibly, they are still preaching this kind of acquiescence on Iraq even today). These "strategists" are the Washington, D.C. parasites who are far more concerned about protecting their own tiny rackets of DCCC contracts and candidate consulting gigs than actually helping the party take back the majority.

Today, these "strategists" are publicly worrying that Democrats challenging the President's illegal behavior "could threaten the party in this year's elections." The first quote in the piece goes to an unnamed Democratic "strategist" who says "If Democrats want to be the party of people who think [the government] is too tough and the Republicans are the party of people who are tough, I don't see how that helps us."

This supposed "strategist," of course, is dishonestly spinning the situation to benefit his opponents - not exactly "strategic." The debate over the domestic surveillance is not a debate over spying on terrorists vs. not spying on terrorists, as this "strategist" - and then Brownstein - assert. Oh sure, as I documented earlier, the media has done everything it can to try to force the scandal into that frame - reporters behavior in this has been nothing short of disgusting. But that's not what this is about. This is about whether this president - or any president - can ignore the Constitution and federal laws to order any kind of spying he wants without a court order. And the fact that these "strategists" aren't even mentioning the fact that the President broke the law - even with Republican Senators admitting he did break the law - should indicate exactly why the Democratic Party today seems so rudderless and poorly run: because the "strategists" running it are morons.

And that gets us to the political question that is at the center of Brownstein's piece, and the overall media's focus: who comes out better politically in this debate?

Brownstein's piece ultimately leans toward the side of the Democratic "strategist." He notes that the White House is "eager" for this debate. Then, after a throwaway line about the public having suspicions about government overreaching in violating people's civil liberties, he states as fact that "most Americans generally say they place a higher priority on pursuing terrorists than protecting civil liberties." Thus we are led to believe the President will come out on top in the debate over his illegal actions, and the debate over the reauthorization of the Patriot Act. Stating such highly subjective assertion as fact - and framing it in such charged terms - really shows how deeply-rooted the D.C. fantasy-land binary thinking really is. Because when you actually look at the facts, that assertion bears no relation to reality, both in terms of how the public actually thinks about these issues in general, and where the public actually comes down.

Here are just a few snippets of facts that the Democratic "strategists" and the Beltway media might consider before they open their yapper and spout off more of this nonsense that has distored America's political debate into Hollywood-esque fiction, and driven the Democratic Party to election loss after loss after loss after loss:

- The Associated Press reported in August of 2005 that according to a poll that month, "fewer than half of Americans know the purpose of the Patriot Act, and the more they know about it the less they like it." So in other words, the more Democrats highlight the Patriot Act's attack on people's individual rights, the more people don't like it. Yet the D.C. Establishment - unable to see past the fake "national security" vs. "anti-national security" storyline - continues to say Democrats just shouldn't talk about these issues.

- An ABC News poll in June of 2005 did show support for the Patriot Act, but did not explain what the Patriot Act was. The more important statistic in that poll, however, was when the public was asked whether it supported allowing law enforcement agencies to obtain individuals' records without a warrant. A whopping 68% of the public were opposed. This was the very thing that President Bush was actually doing in secret when this poll was taken.

- A USA Today poll in February of 2004 again showed widespread confusion over what the Patriot Act does. And when the poll delved just below the surface, it showed the public opposed to the kind of behavior President Bush illegally ordered. Specifically, the poll showed 71% of the public disapproving provisions "allowing federal agents to secretly search a U.S. citizen's home without informing the person of that search for an unspecified period of time." That is, in many ways, a lesser version of what President Bush ordered - he ordered the National Security Agency to spy on individuals' telephone conversations without telling them for an unspecified period of time - and he did so without even a court order.

- A January 2006 Associated Press poll found "A majority of Americans (56%) want the Bush administration to get court approval before eavesdropping on people inside the United States, even if those calls might involve suspected terrorists." So here we have a very recent poll saying Democrats standing up for the rule of law is actually very popular yet again, the Washington "strategic" class and the media urging Democrats to just shut up.

- A January 2006 Zogby poll found that by a margin of 52% to 43%, Americans want Congress to consider impeaching President Bush if he wiretapped American citizens without a judge's approval. Enough said.

So, in short, just a cursory glance at the actual data right below the surface tells us that Democrats, far from putting themselves in "peril," will be tapping into a widely held concern about civil liberties if they continue to have the guts to stand up and challenge President Bush on his illegal spying and his efforts to expand the Patriot Act. Yet, that simple fact is rarely - if ever - even mentioned in the political discourse that spews out of Washington.

In my upcoming book Hostile Takeover, I devote a good deal of time to exposing the political/media Establishment's Orwellian tactics of telling the public it believes one thing and will do one thing when most of the factual evidence says exactly the opposite. It is a psyche-out trick akin to hypnosis - the Establishment is waving a pocketwatch in front of our eyes saying "you are falling into a deep sleep...here is what you believe...you don't really believe what you are telling us you believe..."

Sometimes I wonder whether the Establishment does this deliberately or just reflexively. It is quite possible that reporters, politicians and "strategists" who spend most of their time in the cushy confines of Washington simply have no concept of what people out in the heartland really think. Democratic "strategists" probably can't believe, for instance, that a state like Montana strongly opposes the Patriot Act, to the point where its legislature near-unanimously passed resolutions against it. They can't believe that because all they see is the state's redness in terms of Presidential elections - they somehow label themselves political "strategists" yet are so politically tone deaf as to not realize how these civil liberties issues play in the very red states they are going to need to win to take back power. And let's be honest - even if they could understand it, they probably don't care, because places outside the Beltway are looked upon with disdain by the Establishment, as if the American heartland is merely a nuisance to the elites who are running the show.

But on this score, the Establishment is going to be sorely mistaken. Americans across the political spectrum value their personal freedoms and liberties, even if the elitists in Washington don't. And if Republicans are "eager" for a fight over these issues, then Democrats should be even more eager - because I can tell you from out here in the real world, people don't like Big Government barging into their private lives. The public doesn't like the idea of a bunch of thugs in Washington figuratively kicking down our door with absolutely no checks and balances. And the public does not like the idea of a president so arrogant and out of touch as to strut around breaking laws as if he were a king. Whether the Beltway "strategists" can appreciate that or not right now is no matter - they will learn it soon enough come election day.

White House Declines to Provide Storm Papers
By ERIC LIPTON

WASHINGTON, Jan. 24 - The Bush administration, citing the confidentiality of executive branch communications, said Tuesday that it did not plan to turn over certain documents about Hurricane Katrina or make senior White House officials available for sworn testimony before two Congressional committees investigating the storm response.

The White House this week also formally notified Representative Richard H. Baker, Republican of Louisiana, that it would not support his legislation creating a federally financed reconstruction program for the state that would bail out homeowners and mortgage lenders. Many Louisiana officials consider the bill crucial to recovery, but administration officials said the state would have to use community development money appropriated by Congress.

The White House's stance on storm-related documents, along with slow or incomplete responses by other agencies, threatens to undermine efforts to identify what went wrong, Democrats on the committees said Tuesday.

"There has been a near total lack of cooperation that has made it impossible, in my opinion, for us to do the thorough investigation that we have a responsibility to do," Senator Joseph I. Lieberman, Democrat of Connecticut, said at Tuesday's hearing of the Senate committee investigating the response. His spokeswoman said he would ask for a subpoena for documents and testimony if the White House did not comply.

In response to questions later from a reporter, the deputy White House spokesman, Trent Duffy, said the administration had declined requests to provide testimony by Andrew H. Card Jr., the White House chief of staff; Mr. Card's deputy, Joe Hagin; Frances Fragos Townsend, the domestic security adviser; and her deputy, Ken Rapuano.

Mr. Duffy said the administration had also declined to provide storm-related e-mail correspondence and other communications involving White House staff members. Mr. Rapuano has given briefings to the committees, but the sessions were closed to the public and were not considered formal testimony.

"The White House and the administration are cooperating with both the House and Senate," Mr. Duffy said. "But we have also maintained the president's ability to get advice and have conversations with his top advisers that remain confidential."

Yet even Senator Susan Collins, Republican of Maine, objected when administration officials who were not part of the president's staff said they could not testify about communications with the White House.

"I completely disagree with that practice," Ms. Collins, chairwoman of the Senate Homeland Security and Governmental Affairs Committee, said in an interview Tuesday.

According to Mr. Lieberman, Michael D. Brown, the former director of the Federal Emergency Management Agency, cited such a restriction on Monday, as agency lawyers had advised him not to say whether he had spoken to President Bush or Vice President Dick Cheney or to comment on the substance of any conversations with any other high-level White House officials.

Nevertheless, both Ms. Collins and Representative Thomas M. Davis III, a Virginia Republican who is leading the House inquiry, said that despite some frustration with the administration's response, they remained confident that the investigations would produce meaningful results.

Other members of the committees said the executive branch communications were essential because it had become apparent that one of the most significant failures was the apparent lack of complete engagement by the White House and the federal government in the days immediately before and after the storm.

"When you have a natural disaster, the president needs to be hands-on, and if anyone in his staff gets in the way, he needs to push them away," said Representative Christopher Shays, a Connecticut Republican and member of the House investigating committee. "The response was pathetic."

Even before the House and Senate investigations began, Democrats called for the appointment of an independent commission, like the one set up after the attacks of Sept. 11, 2001, to investigate the response to the most costly natural disaster in United States history. The 9/11 Commission, after extensive negotiations, questioned Mr. Bush and Mr. Cheney and received sworn testimony from Condoleezza Rice, then the national security adviser.

"Our fears are turning out to be accurate," Representative Henry A. Waxman, Democrat of California, said Tuesday. "The Bush administration is stonewalling the Congress."

Mr. Duffy, along with officials from the Departments of Defense and Homeland Security, said that although not every request had been met, the administration had provided an enormous amount of detailed information about nearly every aspect of the federal response to Hurricane Katrina.

The Department of Defense, for example, has provided 18 officials for testimony, and 57 others have been interviewed by Congressional staff members, said Maj. Paul Swiergosz, a Pentagon spokesman. It has also turned over an estimated 240,000 pages of documents.

Russ Knocke, a spokesman for the Homeland Security Department, said his agency, which oversees FEMA, had been similarly responsive, providing 60 officials as witnesses and producing 300,000 pages of documents.

But the White House and other federal agencies have been less helpful, members of the investigating committees said, particularly the Pentagon and Secretary of Defense Donald H. Rumsfeld, who is the subject of the sole subpoena issued so far.

"We have been trying - without success - to obtain Secretary Rumsfeld's cooperation for months," Representative Charlie Melancon, Democrat of Louisiana, said in a letter to Representative Davis on Monday. "The situation is not acceptable."

Mr. Davis, in a written response to Mr. Melancon on Tuesday, said he felt that the Pentagon, after the subpoena, had largely honored the committee's requests.

The Congressional investigations began in September, shortly after Hurricane Katrina struck the Gulf Coast, flooding New Orleans, devastating much of the rest of the region and causing more than $100 billion in damage.

Both of the committees are rushing to try to complete their investigations - the House by Feb. 15, and the Senate by the middle of March - in part because of the approaching Atlantic hurricane season, which starts on June 1.

The separate action this week by the Bush administration to oppose an effort to create what would have been called the Louisiana Recovery Corporation evoked great disappointment among state officials.

Mr. Baker's bill would have bought out owners of ruined homes, offering them at least 60 percent of their pre-storm equity, while also giving mortgage companies 60 percent of their loans on damaged properties. The bonds needed for the project would have been paid off by selling developers federally acquired land.

"The Baker bill as a tool was very efficient in terms of helping people sell out, or clear title to the land," said Sean Reilly, a member of the Louisiana Recovery Authority. "We're going to have to go back to the drawing board and do the best with the tools we have."

Donald E. Powell, the Bush administration's Gulf Coast recovery coordinator, said in a statement that the government was prepared to help victims in other ways.

"We share the common vision, the common objective of Congressman Baker, to assist uninsured homeowners outside the flood plain," Mr. Powell said.

Mr. Powell's spokeswoman, D. J. Nordquist, said the administration was open to discussion if the community development money turned out to be insufficient.