I’ve been reading a number of mainstream news sources and columnists on the report that was released yesterday about the President’s Surveillance Program. It’s interesting to see what others feel the headline should be or the take-home message should be.
To say that “a viable legal rationale could not be found” and that there is no “legal basis to support” these Other Intelligence Activities is to say that they are criminal. And even DOJ lawyers so extreme that they were willing to approve the illegal NSA program we know about concluded this was so. Nonetheless, they went on for two years at least, and Bush ordered them to continue even after his own DOJ concluded they were criminal. Revealingly, Alberto Gonzales explicitly told top DOJ lawyers that the White House didn’t care about their views that what Bush was doing was illegal because that renowned legal scholar — George W. Bush himself — declared that they were legal:
But perhaps Jack Balkin wins the non-existent prize for best perspective and roundup of the report and where we go from here:
In sum: the Bush Administration used an illegal program that wasn’t effective, and when the public found out, it repeatedly used this ineffective program to scare Congress into passing laws that legitimated many of its illegal practices and gave the intelligence agencies greater leeway with less oversight.
Nice move, eh?
The lesson of this story is not that the Bush Administration used to do very bad things and thankfully we don’t do them anymore. The lesson of this story is that Congress needs to require the Executive Branch to implement New FISA in ways that are accountable both to Congress and to a set of ombudsmen in the executive branch that Congress should now create. Congress needs to require audits of the kinds of surveillance programs the executive branch is now running. It needs to create a set of new checks and balances within the executive branch in order to prevent the sloppiness and the end-runs around consultation and checks on abuse we saw in the Bush Administration. Thanks to a successful strategy of repeated and shameless demagoguery, President Bush has handed enormous new powers of surveillance off to his successor, and to every President thereafter, regardless of party. The question now is what, if anything, Congress plans to do to prevent future abuses.
See the sidebar for video of constitutional lawyer Jonathan Turley on Keith Olbermann’s show, discussing the report.