Various Items

Unfortunately, the demands of my real job leave me with no time to write much of anything tonight. But I do want to take a moment to highlight a few good articles I've read recently.

1) Attorney Henry Lanman has a good article at Slate discussing the Bush administration's widespread and troubling use of the obscure "state secrets" privilege. The article provides a good primer on how the doctrine evolved, why it is necessary, and how it is being misused.

2) U.S News & World Report has a long and detailed profile of "the most powerful man you've never heard of"--Vice President Cheney's current chief of staff, David Addington. The article describes how, in the aftermath of 9/11, a small group of hard-line conservative attorneys--led by Addington--began advancing highly dubious legal theories in an effort to justify torture, indefinite detention, and warrantless surveillance:

In the months after the attacks, the White House made three
crucial decisions: to keep Congress out of the loop on major
policy decisions like the creation of military commissions, to
interpret laws as narrowly as possible, and to confine decision
making to a small, trusted circle. "They've been so reluctant to
seek out different views," says one former official. "It's not
just Addington. It's how this administration works. It's a very
narrow, tight group."

That core group consisted of Bush's counsel and now
attorney general, Alberto Gonzales; his deputies, Timothy
Flanigan and David Leitch; the Pentagon's influential general
counsel, William Haynes; and a young attorney named John
Yoo, who worked in the Justice Department's Office of Legal
Counsel.

Whether or not he became the de facto leader of the group,
as some administration officials say, Addington's involvement
made for a formidable team. "You put Addington, Yoo, and
Gonzales in a room, and there was a race to see who was
tougher than the rest and how expansive they could be with
respect to presidential power," says a former Justice
Department official. "If you suggested anything less, you
were considered a wimp."

Historians may look back at late 2001/early 2002 as a pivotal moment in American history, a moment when a small group of short-sighted men decided to cast aside the rule of law in a misguided effort to aggrandize power, and in doing so caused irreparable harm to our constitutional system of government. I hope that's not the case, but in my darker moments, that's what I fear.

3) Spencer Ackerman of The New Republic has an excellent article (subscription only) on the confirmation of General Hayden and his complicity in the NSA surveillance program. Here's a longish fair-use excerpt:

"What I really need you to do is to talk to your constituents
and find out where the American people want that line
between security and liberty to be," Hayden told a joint
House-Senate hearing on pre-September 11 intelligence
failures in October 2002. "These are serious issues that the
country addressed, and resolved to its satisfaction, once
before in the mid-1970s. In light of the events of
September 11, it is appropriate that we, as a country,
readdress them. We need to get it right."

For an entire year before Hayden made his plea for a
democratic recalibration of the liberty-security balance--
and in the three-and-a-half years since--he oversaw a
program that made a mockery of that debate. Beginning in
October 2001, NSA began a secret surveillance program
that tracked communications, ostensibly related to
terrorism, between people in the United States and abroad,
without obtaining warrants under the Foreign Intelligence
Surveillance Act. According to USA Today, the NSA also
compiled a database of patterns of purely domestic
communications, also without warrants. Meanwhile,
Congress--ignorant of the program except for eight
members--debated and approved legal fixes like the Patriot
Act, which meant to reset the liberty-security balance in
precisely the manner Hayden publicly advocated. . . .

Then there's Hayden's description of the program's legality.
According to Hayden, in the days after September 11, then-
Director of Central Intelligence George Tenet asked Hayden
if there was anything more NSA could do to detect a future
attack. His answer was "not within my current authority,"
and so he presented the White House with a range of
options about "what was technologically possible, what was
operationally relevant, and what was lawful." Out of those
briefings came presidential authorization for the terrorist
surveillance program. What didn't emerge, however, was
any change to the law--meaning that Hayden should have
been as restricted in his NSA surveillance capacity after
October 2001, when the program began, as before. Hayden
elaborated that he had received assurances from the a
ttorney general, the Justice Department's Office of Legal
Counsel, and the White House Counsel that such activity
was an inherent presidential power--a completely novel and
highly dubious argument with which he said three top NSA
lawyers agreed. (Curiously, as he told Dianne Feinstein, this
NSA guidance was not delivered in writing, and he added
that he has "not read the Justice Department opinions.")
Yet, despite the FISA law being the same in October 2001
as it was on September 10, 2001, Hayden told an incredulous
Feingold that he had "no doubt" that the program was legal.

Articles like this are the reason I still subscribe to The New Republic.