Joe Klein's defense of warrantless eavesdropping and telecom amnesty

The Beltway reflexively defends measures that, when one really considers them, are indescribably radical and corrupt.


Glenn Greenwald
October 11, 2007 4:26PM (UTC)

(Updated below - Update II - Update III - Update IV - Update V)

There is a lot of debate about what accounts for the decrepit state of our political press, but often overlooked is the sheer sloth and ignorance of journalists, who repeat what they are told without having any idea what they are talking about. Last night, Time's Joe Klein tried to explain why he supports the "Protect America Act" enacted by Congress in August that, in essence, allowed the administration to eavesdrop on all international telephone calls of Americans without warrants. This is what he said:

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I don't agree with those who believe the Democrats have "folded" by agreeing to support the modified FISA law -- even if it is called, in the Orwellian fashion of the Bush Administration, the Protect America Act. From the start, I've argued that the NSA's data-mining program is essential and easily made legal by updating the FISA law . . . .

But the FISA law needed to be updated to reflect the technological advances since the late 1970's, including the use of data-mining, and this bill does that. Needless to say, no actual eavesdropping on conversations should be permitted without a FISA court ruling.

Truly bizarre. Klein says that "no actual eavesdropping on conversations should be permitted without a FISA court ruling." But the bill that Klein simultaneously says he supports allows exactly that -- it allows the Bush administration to eavesdrop, in essence, on any international calls it wants, including those to which a U.S. citizen, on U.S. soil, is a party. That is the whole point of the bill, the whole reason why it is such a travesty -- precisely because it allows "actual eavesdropping on conversations . . . without a FISA court ruling."

Thus, in two short paragraphs, Klein manages to say: "I am absolutely opposed to X, and I vigorously support this bill which grants X." He's obviously writing about his support for a bill that he has not read and that he has not begun to comprehend. And yet he repeatedly writes articles on FISA for Time, the largest weekly newsmagazine in America. That isn't anything more nefarious or complex than just garden-variety sloth and ignorance.

Still, Klein's support for a new law that he does not understand and has not bothered to look at is instructive as to why the bill passed in August and why there is such a danger now that it will be made permanent. In the Beltway culture, granting more power to the Government -- particularly when that power is justified by The Terrorists -- is always a Serious, Inherently Good measure, because that power will be exercised by the Good, Serious Adults Whom are Trusted, the Admiral Mike McConnells and the Gen. Michael Haydens and soon-to-be Trusted and Responsible Michael Mukasey.

These are Good Men, seeking to Protect Us, and there is no reason to deny them the power they demand in order to keep us safe. That's how even Beltway "liberals" like Klein -- and David Ignatius -- show that they are Serious and Trustworthy members of the Beltway elite: by paying proper homage to the Goodness of high governmental officials who are trying to Keep Us Safe.

Read what they write about government surveillance and the only argument one finds, literally, is that our Leaders need more power because they want to protect us. The very notion that such power should not be vested without oversight and safeguards is, to them, considered unserious, because we are talking here about officials who are good and responsible and would never abuse their power. That is why Congress in August all but gutted the Fourth Amendment and vested the Bush administration with the power of warrantless eavesdropping with barely a peep of protest from our Beltway elite. To the contrary, when they speak about it at all, they do so by warning Democrats not to impede these "important" protections.

And it isn't only high government officials who warrant such protection, but also the most influential corporations with the most influential Beltway lobbyists as well. Thus, Klein not only defends the warrantless eavesdropping bill but also casually -- in passing, literally parenthetically -- defends the granting of amnesty to telecoms so that there are no consequences even if they are found by courts to have broken the law in allowing warrantless spying on their customers by the government. This is Klein's defense of telecom amnesty:

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(And I have no problem with telecommunications companies being protected from lawsuits brought by those who may or may not have been illegally targeted simply because the Bush Administration refused to update the law.)

To Klein, telecoms did not act illegally. Not at all. They were simply victims of "the Bush Administration['s] refus[al] to update the law" to make the law consistent with what the telecoms were doing. That would be tantamount to a criminal defendant charged with embezzlement going into court and saying: "Your Honor, I didn't do anything wrong. Why should I be punished just because the Bush administration refused to update the law to make my criminal behavior legal?"

Such an "argument" would trigger judicial laughing fits and probably sanctions. But our Beltway elite is so desperate to defend telcoms (and, more importantly, to close off the sole remaining mechanism for investigating the administration's illegal warrantless eavesdropping and obtaining a judicial ruling as to its illegality) that they will twist themselves into the most inane positions in order to defend something as extraordinary as granting retroactive amnesty for lawbreaking telecoms.

If one actually thinks about, from scratch, what is being considered with this FISA law, it really is extraordinary. The very idea that we ought to allow the government new powers to eavesdrop on our calls and emails without warrants -- particularly since we know that they have been breaking the law for years to do just that -- is unfathomable.

And even more unfathomable is the idea that the Congress would pass a law that has no purpose other than to protect from all legal consequences the largest and most powerful corporations in the event that they are found to have broken our nation's surveillance and privacy laws. What possible justification is there for any of that? Those twin prongs simultaneously eviscerate the rule of law, equality under the law, and the core Fourth Amendment protections the Founders guaranteed.

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Yet our Beltway elite defends these obscene measures as though they are the most unremarkable and natural reactions to revelations that our government has been illegally spying on us. Ignatius:

Key administration demand is retroactive immunity for telecommunications companies that agreed to help the government in what they thought was a legal program. That seems fair enough.

Without even understanding what they are talking about, Beltway pundits like Joe Klein march forward to defend the necessity for these radical new laws, reserving their venom for anyone who raises objections. Obviously, there is no demand among Americans for telecom lawbreaking amnesty and warrantless eavesdropping. Contrary to the primary excuse being offered, there is no "political pressure" in the fabled heartland demanding these laws, and even if there were, it is hardly the case -- as the Beltway's ongoing support for the Iraq War conclusively demonstrates -- that they care about what the public wants.

These measures are being considered solely because they advance two key prongs of the Beltway religion -- increased unchecked government power and protection of lobbyist-empowered corporations. And the Beltway priests assigned to the role of "journalists" then reflexively and dutifully defend them, even when they have no idea what they are talking about.

UPDATE: Regarding the Beltway's reverence for the anointed Serious, Trustworthy members of the Bush administration, I want to add what actually might be the most important point in the entire FISA debate. Here is what David Ignatius said two weeks ago when demanding that Congressional Democrats give the administration what it wants and stop questioning Mike McConnell:

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People who try to occupy a middle ground in these debates find that it doesn't exist. That reality confounded Gen. David Petraeus this month. . . . .

Now the same meat grinder is devouring Mike McConnell, the director of national intelligence. He's a career military intelligence officer who ran the National Security Agency under President Bill Clinton. As near as I can tell, the only ax he has to grind is catching terrorists. But in the vortex of Washington politics, he has become a partisan figure. An article last week in The Hill newspaper, headlined "Democrats question credibility, consistency of DNI McConnell," itemized his misstatements and supposed flip-flops as if he were running for office.

Absolutely. Why would anyone dare to suggest that our Director of National Intelligence is anything but pure in his motives and deserving of the blindest of faith in his statements? Just because he got caught manipulating and outright lying to Congress by agreeing with Joe Lieberman that the new FISA law was instrumental in disrupting a German terrorist plot, even though that was a complete fabrication, is hardly any reason to question this Good, Decent, Responsible, Serious Leader. And that is to say nothing of his hysterical and incomparably manipulative shrieking back in August that a Terrorist Attack was about to happen at the Capitol and Congress had better pass the FISA law they want or else blood would be on their hands.

And then, more importantly still, there is the fact that McConnell has more extensive private sector connections than virtually anyone in the country to the very telecommunication companies for which he is now demanding amnesty, and he has spent the last decade working on behalf of the very companies who would be the prime beneficiaries of this extraordinary legislative gift. In a healthily functioning political system, McConnell would be disqualified from opining on an amnesty bill for companies to which he is so closely tied.

But to our Beltway opinion-makers, the opposite is true -- McConnell is the Unimpeachable Source, and if he decrees that National Security requires Amnesty for his friends and colleagues in the telcom industry, then no decent or serious person will question that. Or else they will have Blood on Their Hands.

UPDATE II: About Klein's "data mining" bit: The relevant parts of FISA -- i.e., the parts which the Bush administration violated -- could not be clearer. 18 U.S.C. Sec. 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted," and FISA's Section 1809 provides that a "a person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." Thus, since the administration eavesdropped on Americans without the warrants required by FISA, they engaged in felonies. The issue is and always has been that clear and simple.

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Precisely due to that clarity, administration apologists have tried to confuse these issues by making people think that the issues are too complex and secret to understand. That is what Joe Klein has done here by talking about the need for the super-secret "data mining," and it is what people like Brookings Institution's Benjamin Wittes tried to do in The New Republic by telling everyone that these matters are far too complex even for the nation's most knowledgeable FISA experts (such as himself) to know if the administration did anything wrong here, let alone for the ignorant masses to form an opinion about that topic.

But manifestly, Klein also has no idea what he is talking about when he claims the administration is engaged in "data mining." The excuse that the administration's violations of FISA were necessitated by "data mining" programs has even been expressly rejected by both Gen. Hayden ("Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about") and Mike McConnell ("Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical. A telephone number is surgical"). If Klein really does know what the NSA is doing -- rather than throwing around the phrase "data mining" because it seems complicated and smart -- then he ought to write about it, since that would be a major scoop.

Either way -- data mining or not -- none of these FISA amendments could coherently be justified on that basis. The changes demanded by the administration and enacted in August by Congress allow actual eavesdropping on the content of telephone conversations and e-mail communications without warrants. Regardless of how giddy and impressed someone is over all the super-modern "data mining" innovations, they manifestly do not justify expansions of warrantless eavesdropping powers. One has nothing to do with the other.

UPDATE III: I just learned that the FISA bill cooked up by Democratic Sen. Jay Rockefeller's Senate Intelligence Committee does contain full retroactive amnesty for telecoms. Here is a list of all registered Verizon lobbyists, and here is a partial list of some of the lobbying firms working on behalf of AT&T. AT&T was the fifth largest contributor to Rockefeller's last campaign, followed by the National Cable and Telecommunications Association in Sixth place, Bell South in Ninth Place, and Verizon was in the top 20.

It's basically legalized bribery and influence peddling -- they pour money into the campaign coffers of these Senators from both parties, pay former government officials such as Jamie Gorelick to help them, and then these Senators jump and pass laws providing that they will receive amnesty for serious felonies. And Joe Klein and David Ignatius are all for it.

UPDATE IV: Digby captures a significant part of the attitudinal problem here.

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Most (though certainly not all) political officials resent when the masses try to intrude into what they're doing, what Pelosi calls the "responsible decisions in the Congress" that they have to make -- such as giving their telecom contributors amnesty and giving the President vast new warrantless eavesdropping powers, not to mention endlessly funding the war in Iraq. They write new FISA legislation with Mike McConnell and telecom lobbyists in secret because that is what Responsible, Serious people do, and anyone on the outside objecting is but a shrill, partisan "activist" -- to use Pelosi's disparaging term -- who is doing nothing other than disrupting the responsible choices that need to be made by our "Leaders."

UPDATE V: For whatever it's worth:

Senator Hillary Clinton said yesterday that if she is elected president, she intends to roll back President Bush's expansion of executive authority, including his use of presidential signing statements to put his own interpretation on bills passed by Congress or to claim authority to disobey them entirely.

"I think you have to restore the checks and balances and the separation of powers, which means reining in the presidency," Clinton told the Boston Globe's editorial board. . . .

She also said she did not subscribe to the "unitary executive" theory that argues the Constitution prevents Congress from passing laws limiting the president's power over executive branch operations. Adherents to the theory say any president who refuses to obey such laws is not really breaking the law.

"It has been a concerted effort by the vice president, with the full acquiescence of the president, to create a much more powerful executive at the expense of both branches of government and of the American people," she said.

At least she is talking about these issues (presumably because she was asked) and uttering the right words for now. The problem, of course, is that political officials do not generally get into office and then expend any real efforts to diminish their own power.

There is a lot of debate about what accounts for the decrepit state of our political press but often overlooked is the sheer sloth and ignorance of journalists, repeating what they are told without having any idea what they are talking about. Last night, Time's Joe Klein tried to explain why he supports the "Protect America Act" enacted by Congress in August that, in essence, allowed the administration to eavesdrop on all international telephone calls of Americans without warrants. This is what he saidI don't agree with those who believe the Democrats have "folded" by agreeing to support the modified FISA law -- even if it is called, in the Orwellian fashion of the Bush Administration, the Protect America Act. From the start, I've argued that the NSA's data-mining program is essential and easily made legal by updating the FISA law . . . .

But the FISA law needed to be updated to reflect the technological advances since the late 1970's, including the use of data-mining, and this bill does that. Needless to say, no actual eavesdropping on conversations should be permitted without a FISA court ruling.

Advertisement:

Klein says that "no actual eavesdropping on conversations should be permitted without a FISA court ruling." But the bill that Klein simultaneously says he supports allows exactly that -- it allows the Bush administration to eavesdrop, in essence, on any international calls it wants, including those to which a U.S. citizen, on U.S. soil, is a party. That is the whole point of the bill, the whole reason why it is such a travesty -- because it allows "actual eavesdropping on conversations . . . without a FISA court ruling" -- exactly what Klein, while supporting the bill, says he opposes so emphatically that pointing it out is "needless to say."

Thus, in two short paragraphs, Klein manages to say: "I am absolutely opposed to X, and I vigorously support this bill which grants X." He's obviously writing about his support for a bill that he has not read and that he has not begun to comprehend, and he repeatedly writes articles on FISA for Time, the largest weekly newsmagazine in America. That isn't anything more nefarious or complex than just garden-variety sloth and ignorance.

Still, Klein's support for a bill that he does not understand and has not bothered to look at is instructive as to why the bill passed and why there is such a danger that it will be made permanent. In the Beltway culture, granting more power to the Government -- particularly when that power is justified by The Terrorists -- is always a Serious, Inherently Good measure, because that power will be exercsied by the Good, Serious Adults Whom are Trusted, the Admiral Mike McConnells and the Gen. Michael Haydens and soon-to-be Trusted and Responsible Michael Mukasey.

These are Good Men, seeking to Protect Us, and there is no reason to deny them the power they demand in order to keep us safe. That's how even Beltway "liberals" like Klein -- and David Ignatius -- show that they are Serious and Trustworthy members of the Beltway elite: by paying proper homage to the Goodness of high governmental officials. Read what they write about FISA and the only argument one finds, literally, is that they need more power because they want to protect us. The very notion that such power should not be vested without oversight and safegurads is, to them, considered unserious, because we are talking here about officials who are good and responsible and would never abuse their power. That is why Congress in August all but gutted the Fourth Amendment and vested the Bush administration with the power of warrantless eavesdropping with barely a peep of protest from our Beltway elite. To the contrary, when they speak about it at all, they do so by warning Democrats not to impede these "important" protections.

Advertisement:

And it isn't only high government officials who warrant such protection, but also the most influential corporations with the most influential Beltway lobbyists as well. Thus, Klein not only defends the warrantless eavesdropping bill but also casually defends granting of amnesty to telecoms so that there are no consequences even if they are found by courts to have broken the law in allowing warrantless spying on their customers by the government. This is Klein's defense of telecom amnesty:

I have no problem with telecommunications companies being protected from lawsuits brought by those who may or may not have been illegally targeted simply because the Bush Administration refused to update the law.

To Klein, telecoms did not act illegally. Not at all. They were simply victims of "the Bush Administration['s] refus[al] to update the law" to make the law consistent with what the telecoms were doing. That would be tantamount to a criminal defendant charged with embezzlement going into court and saying: "Your Honor, I didn't do anything wrong. Why should I be punished just becasue the Bush administraiton refused to update the law to make my criminal behavior legal?"

Such an "argument" would trigger judicial laughing fits and probably sanctions, but our Beltway elite is so desperate to defend telcoms (and, more importantly, to close off the sole remaining mechanism for investigating the administration's illegal warrantless eavesdropping and obtaining a judicial ruling as to its illegality) that they will twist themselves into the most inane positions in order to defend something as extraordinary as granting retroactive amnesty for lawbreaking telecoms.

If one actually thinks about, from scratch, what is being considered with this FISA law, it really is extraordinary. The very idea that we ought to allow the government new powers to eavesdrop on our calls without warrants -- particularly since we know that they have been breaking the law for years to do just that -- is unfathomable. And even more unfathomable is the idea that the Congress would pass a law that has no purpose other than to protect from all legal consequences the largest and most powerful corporations in the event that they are found to have broken our nation's surveillance and privacy laws. What possible justification is there for any of that? Those twin prongs simultaneously eviscerate the rule of law, equality under the law, and the core Fourth Amendment protections the Founders guaranteed.

Advertisement:

Yet our Beltway elite defends these obscene measures as though they are the most unremarkable and natural reactions to revelations that our government has been illegally spying on us. Ignatius:

Key administration demand is retroactive immunity for telecommunications companies that agreed to help the government in what they thought was a legal program. That seems fair enough.

Without even understanding what they are talking about, Beltway pundits like Joe Klein march forward to defend the necessity for these radical new laws, reserving their venom for anyone who raises objections. Obviously, there is no demand among Americans for telecom lawbreaking amnesty and warrantless eavesdropping. These measures are being considered solely because they advance two key prongs of the Beltway religion -- increased unchecked government power and protection of lobbyist-empowered corporations -- and the Beltway priests then reflexively defend them, even when they have no idea what they are talking about.


Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

MORE FROM Glenn GreenwaldFOLLOW ggreenwald

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