First and foremost: Hat tip to dirtroad for dropping a message in a message thread about an article that will constitute much of this diary.

I posted a diary yesterday about Jack Cafferty (CNN) picking up the story regarding DOJ's about-face on investigating the NSA wiretaps and parlaying it into his Question of the Day. The set-up, the question, and the responses Cafferty read are in the diary linked above.

It's important, though, to understand what they are "investigating" and prepare for the implications of any such "investigation". With that, follow me over the fold and we'll get right to it.

The article dirtroad was kind enough to highlight is by Thomas C. Greene from The Register. I'm going to pick and choose parts of the article, but the whole thing is worth a read.

DoJ investigators will examine how the data scooped up by the NSA is handled and applied when US citizens are affected. No doubt the government's practices will be measured against the Foreign Intelligence Surveillance Act (FISA), although the Bush administration has claimed repeatedly that it answers to a higher authority.

My emphasis added. The first important thing to note is that this is not an investigation into the legality of the spying itself. It is an investigation into how the data is collected and handled. Right out of the gate, this assumes the practice itself is legal.

Continuing, an interesting observation:

This apparently proactive cooperation should strike Washington watchers as preemptive. If the Bushies are willing to concede the issue without a fight, it's most likely because they doubt there's much red meat to be had from it. That is, if they want this investigated first, it's because they want other things investigated last.

The media has made a great fuss about this program, so it should surprise no one if the combination of a whole lot of smoke and a small fire suits the administration quite well. If it keeps Congress and the press occupied, and only hurts the administration moderately, it's a Godsend.

Hm. Just, hm. I'm trying to work through what I think about that. Given first that the investigation is into the process and not the legality, I'm inclined to see the logic Greene applies to this, and I find it wholly consistent. Set a small campfire to distract people while the forest fire rages over the next ridge.

And the money quote:

The NSA spy scandal offers the administration many virtues as a national hobbyhorse. For one, it's painless and "clean"; no one has been bloodied, maimed, or killed by it. It doesn't melt anyone's skin like the incendiary weapons used in Fallujah; it doesn't blow up one's house and leave half of one's family deadU. It doesn't cause the premature burial of young Americans killed in Iraq, whose families need them far more than their country ever did. No one in Iraq is fighting for America, not even the Americans. The USA never needed that war; George W Bush alone needed it, and for a contemptible reason: he thought it would make him Great.

--snip--

Indeed, the NSA spy program could be *just the media obsession the administration is looking for, now that the balance of power has shifted.

Hm again. What's that, you say? A mass distraction with the media's cooperation to distract us from doing things that really matter? Perish the thought.

I also found this interesting snippet from The Albany Times Union:

So why is Mr. Fine (DOJ OIG] suddenly joining the fray, given his past refusal to look into the program? One has to suspect the timing. Come January, some of the harshest critics of the spying program will be part of the new Democratic majority in Congress, and in a position to launch their own investigations and issue subpoenas. Thus, Mr. Fine may well be on a damage control mission. If he issues a report claiming the material obtained under the program hasn't been abused, and that there are safe guards in place to protect the privacy of Americans, the White House will be able to argue that the Democrats' investigations aren't necessary.

Two different but potentially related speculations on the why of this "investigation". The first argues distraction; the second argues damage control. In the comments to yesterday's diary, many raised legal questions as to whether or not the "investigation" can be used to protect potential witnesses called by the Democratic-controlled Congress. The argument, repeated by several commenters, was that the administration would use the "subject of an ongoing investigation" (thanks, Scotty) as a reason to decline to provide potentially damaging information to Congressional committees.

Now - what if it's all three? Republicans may have failed in their much-feared ability to deliver elections, but I don't believe any of us have been lured into a false sense of security that they are totally off their game and now rendered suddenly unable to see the landscape and orchestrate the best possible outcome for themselves.

In researching this, I tried to find the original letter that 23 Democrats sent to Fine some unspecified amount of time ago. All I could find specific to illegal wiretapping was a letter to the President (PDF):

We urge you to immediately direct Attorney General Alberto Gonzales to exercise his authority under 28 U.S.C. §§ 509, 510 and 515 to appoint a Special Counsel to investigate recent reports that the National Security Agency may have conducted warrantless surveillance on U.S. persons in violation of the Foreign Intelligence Surveillance Act (FISA) and the 4th Amendment to the U.S. Constitution. We know that the security of the American people depend on our law enforcement and intelligence agencies' interception of communications between terrorist agents. We believe that this surveillance can and must be performed according to the rule of law.

--snip--

Unfortunately, Mr. Gonzales' recent testimony before the Senate Judiciary Committee did little to answer our questions or dispel our concerns. Rather, the Attorney General's opaque testimony simply left us with even more questions about this program. Mr. Gonzales repeatedly refused to discuss what he called the "operational details" of this program, refusing to inform the Committee of such "operational details" as whether the Department discloses to the FISA court its use of information garnered from this program in obtaining warrants from the court - in other words, whether the Department was pursuing prosecutions based on evidence gathered in possible violation of FISA and the 4th Amendment. Press reports indicate that, in fact, evidence gathered under this program may have been used improperly to obtain warrants from the FISA court.

--snip--

[Signed:]

Zoe Lofgren (D-CA)
Gary Ackerman (D-NY)
Rick Boucher (D-VA)
Lois Capps (D-CA)
John Conyers (D-MI)
Peter DeFazio (D-OR)
Anna Eshoo (D-CA)
Sam Farr (D-CA)
Raul Grijalva (D-AZ)
Mike Honda (D-CA)
Carolyn Maloney (D-NY)
Doris Matsui (D-CA)
Jim McGovern (D-MA)
George Miller (D-CA)
David Price (D-NC)
Jan Schakowsky (D-IL)
Adam Schiff (D-CA)
Bennie Thompson (D-MS)

The letter itself questions the legality. But the second paragraph I excerpted could reference the details echoed by Glenn Fine's letter - in other words, the process of collection and handling of information. I note also that, perhaps, this preemptive strike by DOJ is a way to get around what the Democrats requested, appointment of a Special Counsel.

So all you legal wonks out there - can Congress come back and reassert its request for a Special Counsel? If they do this, can they still conduct hearings and investigations of their own? And the larger question - should we even be paying attention to this?

I'll close with one thing from the article I began with, the one in The Register:

There are so many dark avenues for Congress to illuminate: arbitrary classification of "enemy combatants", indefinite detentions, extraordinary rendition, secret prisons, torture, military kangaroo courts, prisoner abuse, war crimes, phony intelligence used knowingly to justify a needless conflict. Along these avenues lurk unspeakable things involving blood and death, endless loneliness, profound loss, and enduring pain.

Greene essentially argues here that glomming onto this or any other warrantless wiretapping investigation utterly misses the point of what really matters.

posted by RenaRF at 1:51 PM 2 comments