The extrajudicial spying authorized by the Bush administration may be vastly wider than originally thought or than the president acknowledged 10 days ago.
The New York Times is reporting that the National Security Agency has been tapping directly into some of the main arteries of American telecommunications companies in its hunt for suspicious activity, apparently with the approval of those telecommunications companies, but not with the approval of any court.
The agency combing through phone calls and e-mails said to number in the millions, not all of them, obviously, the work of terror suspects. In acknowledging the eavesdropping last week, the president having said that only those suspected of terrorist ties were being monitored.
As for why the White House chose to bypass the judiciary, the Seattle Post-Intelligencer newspaper reporting that it may not have liked the courts' interference, government records showing that the secret federal surveillance court did not always rubber-stamp those requests, choosing to modify 179 out of the more than 5,600 applications for electronic surveillance submitted by the Bush administration, rejecting six outright.
And the blog The Huffington Post, noting that in 2003, British newspapers had reported that the administration had green-lighted surveillance of U.N. diplomats in New York prior to the invasion of Iraq, not for fear of terrorism, but in hope of gaining some kind of leverage as the U.S. sought U.N. support of the Iraqi venture.
These revelations prompting an outcry on Capitol Hill, congressional Republicans indicating off the record that they might launch a full investigation, Senator Arlen Specter of the Judiciary Committee having already said that he intends to conduct oversight hearings into the president's legal authority to approve such wiretaps.
Impeachment would seem to be a practical impossibility, what with same-party control of the White House, Senate, and Congress. But those murmurs have begun, certainly among the president's critics and opponents, and in the nation's newspapers. "The Oakland Tribune" has asked its readers in an editorial to donate 535 copies of George Orwell's novel "1984" so it could distribute one to each member of Congress.
When it comes to law, impeachment, politics, and personal experience, perhaps no man living knows more about the subjects than former Nixon White House counsel John Dean, who was charged with obstruction of justice and spent four months in prison for his role in the Watergate cover-up.
Dean joined MSNBC's Keith Olbermann on Tuesday to discuss the latest about the Bush administration's controversial surveillance activities.
To read an excerpt from their conversation, continue to the text below. To watch the video, click on the "Launch" button above and to the right.
KEITH OLBERMANN: Mr. Bush's defenders on this have said, in fact, he himself has quoted Article 2 of the U.S. Constitution. It says, he says, that it gives him the authority, requires him to protect this country in any way necessary. Is that absolute?
JOHN DEAN, FORMER WHITE HOUSE COUNSEL: Well, I've never read Article 2 quite as broadly as it's being read now, and I've often thought what would have happened if Richard Nixon had said, Well, you know, what this is really about is my commander-in-chief power. That's why I'm breaking into Daniel Ellsberg's office, to see if he's passing out these Pentagon papers to the communists.
That's the parallel argument. It was probably the best defense that Nixon might have made, but he actually didn't even go that far.
OLBERMANN: I can remember well, though, that President Nixon's rationalization, and this was in the David Frost interviews three years after the resignation, on all of this was, if the president does it, then it is not illegal. Is there a legal or constitutional support for that idea? Is there something in how Lincoln suspended habeas corpus and ignored the Supreme Court during the Civil War that gives the president the right to define an emergency and declare what's necessary to deal with that emergency, all by himself?
DEAN: There's no question a president has what they call prerogative powers, and that's what Nixon was talking about with Frost. In fact, they were talking specifically about Lincoln in that exchange.
And it's a long-held belief that, indeed, it comes-goes all the way back to John Locke's thinking on executive powers, that there are inherent powers that nobody will put into a Constitution, that in case of an emergency, the president can exercise those prerogative powers.
What's interesting, Keith, is, every time a president does exercise his prerogative powers, he tends to get himself in trouble, whether it be JFK with the Bay of Pigs, whether it be Eisenhower with U-2 flights, whether it be Richard Nixon or Lyndon Johnson escalating Vietnam without congressional clearance, and Nixon's actions himself.
They all seem to get in trouble when they go into this area. And we see it again today.
OLBERMANN: You quoted in your book Justice Brennan, "After each perceived security crisis ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary."
It would be sort of-I still think it would still be hard in many, many places, even in those areas in which the president is most fiercely criticized for this, to envision some scenario in which the terror issue will not sustain historical analysis.
Do you suspect that this will be merely lumped in there with the Red scare of the 1920s and the subsequent one of the 1950s and all the other reasons that the Constitution has been nudged aside for a time?
DEAN: Well, we don't have all the facts on this. And I don't think anybody's going to fault the president in his goal. The ends are certainly appropriate. He's trying to protect Americans from the threat of a terrorist attack, or the actual attack. No one can slight that.
It's the means that he's employed. Why, for example, hasn't he gone to Congress? If-he's been doing this for four years now, we've learned from the very first report that he didn't have in place initially protections. This is something they put in in 2004, thinking that, Well, if John Kerry does slip by, we could be in criminal trouble, so we'll put some protections in here, at least to look like we were doing it cautiously and carefully and protecting liberties.
But it was an afterthought. So why didn't anybody take care of this in four years? Why couldn't Congress-I haven't heard a good argument why Congress couldn't, indeed, have dealt with this issue.
OLBERMANN: There's also a kind of backwards way of looking at the electronic surveillance question that was put by a constitutional law professor quoted by "The New York Times," who asked, in essence, if the Constitution directly authorized this kind of stuff, why would we even have this foreign intelligence surveillance court to review wiretap requests?
If Mr. Bush can just do this, or any president can just do this, why doesn't he just do this all the time by himself? Why have the court?
DEAN: Well, it does happen that we are a government of laws. And-theoretically, at least. And why do we need a PATRIOT Act if he has all these powers? If the-if anyone reads the Article 2 the way Bush does, Cheney, his former counsel, David Addington, and John Yoo do, there are just no powers they don't have in the name of defending the country against terrorism, and terrorism is an indefinite threat.
Therefore, they can do anything indefinitely that they wish. That isn't what I think the Constitution contemplates.
OLBERMANN: Put all this together for me. Are the president's actions authorizing the NSA to spy internally in this country, are they illegal, and do they, in fact, right now constitute an impeachable offense?
DEAN: Well, I don't think there's any question he's violated the law. He's admitted to violating the law. What he is saying, I have a good defense, and that is national security. I have this power to do this, or this very vague resolution that the Congress granted for my using force in dealing with Afghanistan and terrorists. I can read into that that it also includes collecting signal intelligence.
It's a stretch. So what does this all mean? Is it an impeachable offense? Keith, that is a purely political question, and only the House of Representatives can decide it in the first instance. And I don't think they're going to decide it against the president at this point.
OLBERMANN: Two years ago, when you were writing your book "Worse Than Watergate," you entitled a chapter "Scandals or Worse," and you listed 11 specific areas where trouble might be brewing. And then you wrote less specifically about two other areas of concern.
Let me just review those 13 points, if you will, quickly here. One, character issues would meet Mr. Bush's past conduct, service record, and what not. Two, his prior business conduct, how to get a company and your own ball club without really trying or paying. Number three, whether or not the vice president had been truthful about his own health. And number four, Mr. Cheney's past business conduct. Hello, Halliburton.
Five, the possibility of civil rights violations in keeping protesters out of the Bush and Cheney events. Six, the president's executive order dismantling the Presidential records Act. Seven, those pesky little national energy policy development meetings that Mr. Cheney had chaired. Eight, the president's effort to prevent a 9/11 commission.
Nine, the failure to update the continuity-of-government plan. Ten, the possible misleading of Congress about Iraq. Eleven, the leaking of Valerie Plame's name by the White House.
And then, as I said, less formally, 12, what you quoted (Law Professor) Oren Gross as saying, "Terrorism presents its real threat in provoking democratic regimes to embrace and employ authoritarian measures." Sounds kind of like a forecast of this NSA spying story.
And lastly in this group here, efforts by Mr. Bush and Mr. Cheney to expand the powers of the presidency.
I'm gathering that, two years later, you'd probably say we should be watching numbers 10 through 13 most closely. Or is there something new on the list?
DEAN: I think 10 through 13 would be a good place to start. And I think if, for example, the composition of the Congress changes in the House or the Senate in 2006, it's going to be Katy, bar the door. This administration has an awful lot of things they're going to have to explain.
I think this is coming right out of the vice president's office, Keith, and he sold the president on what to do. This is something that Dick Cheney's wanted to do since he left the White House as chief of staff, and he's about doing it now. And he's doing it with a vengeance.
And I'm not sure the Congress is going to tolerate it if they lose control of the Congress.
OLBERMANN: Well, to that point, obviously, a Republican Congress will not be impeaching a Republican president, so the fall midterm elections have already-there's no news here to say they're shaping up as a referendum on the president.
But apply your political experience and your impeachment experience here. If you're the Republicans, are you best advised to embrace this now, to say, Hey, vote Republican this fall, or the Democrats will impeach George W. Bush?
DEAN: I think it's dangerous for some Republicans, and I think some Republicans have realized that. They don't want to-they didn't want to, for example, have a vote if they could avoid it on many of these controversial issues. They're trying to avoid them right now like a plague.
They know the politics of this. They know the American people do not like to lose their civil liberties. It's still a story that is just starting to catch on and be broadly embraced and understood. It's a complex story. But people do get wiretapping. That's one of those issues they understand. Richard Nixon was impeached for it. He claimed national security. The Congress said, No national security. I think we got a parallel situation.
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