Remember this gentleman?
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Why not let someone like him get to the bottom of the NSA wiretapping controversy?

Tags: NSA wiretapping, Special Counsel, MLK-Day speech, Al Gore, Censure, Russ Feingold, Patrick Fitzgerald

In his MLK-Day speech on January 16th, Al Gore issued a rigorous indictment of the Bush Administration, and prescribed a five-point course of action to deal with a range of administrative excesses and overreach, and demanded the restoration of accountability and the rule of law. Here were Mr. Gore’s prescriptions:

  1. A special counsel should immediately be appointed by the Attorney General to remedy the obvious conflict of interest that prevents him from investigating what many believe are serious violations of law by the President. We have had a fresh demonstration of how an independent investigation by a special counsel with integrity can rebuild confidence in our system of justice.  Patrick Fitzgerald has, by all accounts, shown neither fear nor favor in pursuing allegations that the Executive Branch has violated other laws.

    Republican as well as Democratic members of Congress should support the bipartisan call of the Liberty Coalition for the appointment of a special counsel to pursue the criminal issues raised by warrant-less wiretapping of Americans by the President.

  2. Second, new whistle-blower protections should immediately be established for members of the Executive Branch who report evidence of wrongdoing, especially where it involves the abuse of Executive Branch authority in the sensitive areas of national security.
  3. Third, both Houses of Congress should hold comprehensive, and not just superficial, hearings into these serious allegations of criminal behavior on the part of the President. And, they should follow the evidence wherever it leads.
  4. Fourth, the extensive new powers requested by the Executive Branch in its proposal to extend and enlarge the Patriot Act should, under no circumstances be granted, unless and until there are adequate and enforceable safeguards to protect the Constitution and the rights of the American people against the kinds of abuses that have so recently been revealed.
  5. Fifth, any telecommunications company that has provided the government with access to private information concerning the communications of Americans without a proper warrant should immediately cease and desist their complicity in this apparently illegal invasion of the privacy of American citizens.

    Freedom of communication is an essential prerequisite for the restoration of the health of our democracy.

    It is particularly important that the freedom of the Internet be protected against either the encroachment of government or the efforts at control by large media conglomerates.  The future of our democracy depends on it.

The wiki page on wiretapping controversy has a detailed and evolving account of the developments on this matter, and those on the congressional front are described in the congressional section of the entry, including Sen. Feingold’s censure motion.

An important house subcommittee testimony is the following (with key portions highlighted):

Whistle-blower says NSA violations bigger

WASHINGTON, Feb. 14 (UPI) — A former NSA employee said Tuesday there is another ongoing top-secret surveillance program that might have violated millions of Americans’ Constitutional rights.

Russell D. Tice told the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations he has concerns about a “special access” electronic surveillance program that he characterized as far more wide-ranging than the warrant-less wiretapping recently exposed by the New York Times but he is forbidden from discussing the program with Congress.

Tice said he believes it violates the Constitution’s protection against unlawful search and seizures but has no way of sharing the information without breaking classification laws. He is not even allowed to tell the congressional intelligence committees – members or their staff – because they lack high enough clearance.

Another important piece of the puzzle can be found in the recent interview given by Sen. Durbin.

Durbin: And even though Senator Feinstein and I have had a brief conversation, she couldn’t go into any details because of the classification. She says she thinks this is an important program. Well, we have a law that the president should follow if this program is going to make America safer.

Also note this excerpt from that interview:

DURBIN: I’ll tell you point blank that to argue that there was some sort of a briefing of members of Congress is to ignore the obvious. Ninety-six senators have not heard any details of what is happening with this warrant-less wiretap.

In addition, there are only eight members of the Senate Intelligence Committee who are now being given some sort of a briefing.

The findings then are:

  1. Not very many senators know the details of the wiretapping program as exposed by NYT. And even the nature, much less the extent, is apparently not well understood by most of them.
  2. If one were to go by Mr. Tice’s testimony, it could very well be that what was exposed by NYT is only a small portion of a much larger program that infringes upon the civil rights of millions of law abiding Americans. This, if established, could very well constitute grounds for impeachment.
  3. The administration is using security clearances as a way to block information and stonewall investigations.

Going from the seemingly unbiased investigation of Fitzgerald, a special counsel appears to be the best way to get to bottom of the matter. Let the investigation lead to whereever the evidence points towards, perhaps an impeachment.

The administration will likely attempt to stonewall a special counsel investigation as well, using classification as a tool of evasion. There are a few possible ways to deal with that tactic:

  • find a special counsel with sufficient clearance
  • conduct the investigation under the auspices of the FISA court itself
  • a combination of the above two
  • from a bi-partisan congressional panel comprised of members from both house and the senate that do have  sufficient clearance, and have them explore the need for the  claimed classification requirements. Such a panel could also serve to conduct an investigation of its own into the wiretaps program.

Based on the above, here is a multi-pronged investigative plan that Congressional Democrats (concerned and principled Republicans as well) could call for:

  1. Demand a special counsel investigation, with suitable clearances being granted for the investigation, and operating in the FISA court, if necessary
  2. Form a congressional panel to look into the classification requirements being claimed by the administration.
  3. Establish whistle blower protections
  4. Demand telephone companies to cease and desist giving private information. (this 2/5/06 USA Today article mentions specific instances)
  5. Filibuster any bills that attempt to retroactively justify the circumvention of the law by the administration.

Should you agree with analysis, may I suggest you to locate your senators and representative at this link, and convey your thoughts to them (the congress is in a recess, and hence calling the home offices may work better, this week)?

Time and again, Al Gore’s words have proven to be strikingly prescient. I firmly believe that he was once again 100% on target in his masterfully argued MLK-Day speech. Please note that even here, his speech (1/16/06) predated both Tice’s testimony (2/14/06) and the Telecom news item (2/5/06).

Before I close, I would like to recommend the wiki page on wiretapping controversy for keeping up-to-date with the events surrounding this matter.


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