Choice America Editorial

As a veteran, nothing offends me more than to see a politician pull on a flight jacket, combat fatigues or a ball cap emblazoned with the symbol of some legitimate military organization and mingle with young men and women serving our country in a war zone. Vice President Dick Cheney recently played out the Bush administration's version of this "patriot act" by joining the troops in Baghdad to drum up support for our misadventure in Iraq.

Cheney's act gets no rave review in my book. His act of patriotism has little substance and no historical justification. This is the same Cheney who in 1989 told The Washington Post, in explaining his avoidance of the draft during the Vietnam era: "I had other priorities in the '60s than military service." So did I. So did, I have no doubt, the 55,000-plus young patriots who gave their lives in Vietnam.

I cannot help but think that if Cheney were 20 years old today, the last place on this planet that either he or George W. Bush would be is in Iraq. Even so, there he is, a man a step away from being commander-in-chief, sitting down to a Halliburton-provided meal with some true patriots and urging them to sacrifice their young lives for Iraqi freedom and Halliburton's bottom line. How ironic is it that Cheney is sequestered safely within the fortifications of the Green Zone in besieged Baghdad?

Just how green the Tigris and Euphrates River Valleys have been for Halliburton and Cheney remains a matter of some conjecture. In 2003, Cheney stated on NBC's "Meet the Press": "I have no financial interest in Halliburton of any kind and haven't had, now, for over three years." Without boring you with the details, let me say that it has been verified that Cheney's statement was not entirely true.

As we are all well aware, Cheney also claimed that Saddam Hussein possessed weapons of mass destruction. This did not turn out to be true either. Now, while I don't want to accuse the vice president of being a liar, I would advise him if he were the protagonist in Pinocchio to steer clear of any lumber companies in the great Northwest. Cheney should instead concentrate more fully on the facts in Iraq. While it is highly unlikely that he would risk life or limb for Iraqi freedom, he is more than willing to sacrifice your sons and daughters to fulfill the administration's pipedream of democracy in the Mideast. Lyndon Johnson had a similar dream for Southeast Asia; that too turned into a nightmare. But not just for him.

The drums of Washington's Beltway warriors sound all too familiar; in my case the call was to defend the freedom of the people of South Vietnam from the red peril; or was it that we were defending ourselves from the yellow peril? Or were the North Vietnamese defending themselves from the white peril? I don't recall. I just know it was a perilous world we lived in, and if Vietnam fell, so too would Cambodia, Laos, Thailand and all the rest, like dominoes. That theory, I'm sorry to say, is alive and well today in the Mideast. If Iraq falls, so too will Iran, Lebanon, Syria, etc. Dominoes déjà vu. The beat goes on.

How many times have we heard that Iraq is not like Vietnam? I agree; it's not. It's much worse. And the guys who got us in there have no idea of how to get us out. This administration cannot comprehend that democracy is a process; it cannot be imposed on another country by military force. The will of the people must provide the foundation for a democratic government; the people who want it must be as willing to die for it as the people who so vehemently oppose it. We cannot do the killing and the dying for Iraqi freedom; Iraqi patriots must do it for themselves.

Our failure in Vietnam was inevitable because we did not have the support of the people. When we pulled out of Vietnam under the Nixon administration's banner of "Peace with Honor," we left South Vietnam with a well trained and well equipped, albeit poorly led, army. However, that army, that government, did not have the support of the people. Did we learn nothing from the fall of Saigon in 1975? Did the loss of 55,000-plus American and millions of Vietnamese lives teach us nothing? Are elections supervised by an occupying army truly democratic?

One can already sense, in spite of the spin by Bush administration, that their resolve to stay the course in Iraq is weakening. This month, Secretary of Defense Rumsfeld announced that a gradual reduction in force levels would begin immediately. These cuts are more the result of politics that military success in Iraq. Because of political pressure and unrest at home, the administration is looking for a way out that can somehow justify to the wives and parents and children and husbands of American casualties that their lives were not wasted. Bush's admission that his decision to go to war was based on faulty intelligence in no way diminishes his poor judgment; nor does it excuse the senseless loss of life — military and civilian, American and Iraqi. This administration will never — indeed it cannot — admit that invading Iraq was a horrible mistake. This war has made neither Iraq nor our country safer; Bush's lack of foresight has only strengthened the resolve of our enemies.

But what's a president to do? Tell the families of the causalities that he made a mistake? No way. Not with his legacy at risk. Bush wants to pawn his failure and bad judgment in Iraq off on the next administration; he and Cheney want to be let off the hook for the causalities suffered in Iraq. That way, their patriot act might be recorded more favorably by historians.

This country had a revolution because the people would no longer tolerate the abuses of King George. That is how the world works; that is how a democracy is born; democracy is not imposed at gunpoint by an occupying army. Political change must come from within, not from without. And the Iraqi people will never be truly free until they are free from us as well as their own history.

That having been said, I still urge those young Americans of both parties who support the war to become patriots rather than just give lip service to the Iraqi cause-enlist, get a commission, sign up for the National Guard. Then if you enter politics at some time in the future, you can run on your military record rather than from it. You'll be able to sit down with your troops in a war zone knowing you're one of them; you won't have to fabricate a patriot act because you will have already demonstrated your patriotism through service.

Dave Christner is a Newport, R.I., playwright. He fought in Vietnam aboard the USS Carronade from 1966-1969. He was awarded the Navy Commendation Medal with a combat V, a Gold Star in lieu of a second Navy Commendation Medal, and a Combat Action Ribbon. Christner is also the author of an award-winning trilogy of Vietnam plays. His newest play, "Free Shot," will premiere in Broomfield in May.

Copyright © 2006 The Daily Camera and Boulder Publishing, LLC

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WASHINGTON - January 4 - Public Citizen called on President Bush today to provide a full accounting of the sources of the $100,000 or more that disgraced lobbyist Jack Abramoff raised for his 2004 presidential campaign. The campaign gave Abramoff the title of a Bush “Pioneer” in 2004 for raising at least $100,000 in amounts of up to $2,000 from his friends and associates.

“Abramoff has now pleaded guilty to fraudulently raising hundreds of thousands – if not millions – of dollars to curry favor in Washington,” said Frank Clemente, director of Public Citizen’s Congress Watch. “The public deserves to know if any tainted money ended up in the Bush campaign.”

Federal disclosure laws do not require individuals who raise, or “bundle,” a large number of separate contributions for political candidates to disclose their role in the fundraising unless they physically handle the checks. Bush’s 2000 and 2004 campaigns bestowed the title of “Pioneer” on those who raised at least $100,000 and “Ranger” on those who raised at least $200,000. Today the Republican National Committee announced that Bush’s campaign would donate the $2,000 that Abramoff, his wife and one of his tribal clients each contributed to the campaign ($6,000 total) to a charity. However, the campaign has not revealed the sources of the rest of the money Abramoff raised for it and has not announced any intention to return it or donate it to charity.

“President Bush needs to follow the lead of many members of Congress and reveal just how much money Abramoff raised for him and who that money came from,” said Clemente. “Congress also needs to pass fundamental lobbying reforms to clean up Washington.”

Public Citizen has proposed reforms to the lobbying system related to campaign fundraising, including:

• Prohibiting lobbyists from serving as the treasurers of officeholders’ campaign committees or leadership political action committees; and
• Prohibiting lobbyists from making, soliciting or arranging campaign contributions to those whom they lobby, except to members who represent the lobbyists’ own district.

If Congress is unwilling to stem the flow of lobbyist contributions, Public Citizen recommends the following reforms:

• Requiring lobbyists and lobbying firms to disclose their campaign contributions and the amount and dates of any campaign funds raised through fundraising events that the lobbyist or firm sponsored. This provision is contained in legislation recently introduced by Sen. John McCain (R-Ariz.), S. 2128, and Rep. Chris Shays (R-Conn.), H.R. 4575; and,
• Requiring that the original source, conduit and amount of all contributions “bundled” by lobbyists and others be fully disclosed.

CONTACT: Public Citizen
(202) 588-1000

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On Friday, December 16, the New York Times published a major scoop by James Risen and Eric Lichtblau: They reported that Bush authorized the National Security Agency (NSA) to spy on Americans without warrants, ignoring the procedures of the Foreign Intelligence Surveillance Act (FISA).

It was a long story loaded with astonishing information of lawbreaking at the White House. It reported that sometime in 2002, Bush issued an executive order authorizing NSA to track and intercept international telephone and/or email exchanges coming into, or out of, the U.S. - when one party was believed to have direct or indirect ties with al Qaeda.

Initially, Bush and the White House stonewalled, neither confirming nor denying the president had ignored the law. Bush refused to discuss it in his interview with Jim Lehrer.

Then, on Saturday, December 17, in his radio broadcast, Bush admitted that the New York Times was correct - and thus conceded he had committed an impeachable offense.

There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons.

These parallel violations underscore the continuing, disturbing parallels between this Administration and the Nixon Administration - parallels I also discussed in a prior column.

Indeed, here, Bush may have outdone Nixon: Nixon's illegal surveillance was limited; Bush's, it is developing, may be extraordinarily broad in scope. First reports indicated that NSA was only monitoring foreign calls, originating either in the USA or abroad, and that no more than 500 calls were being covered at any given time. But later reports have suggested that NSA is "data mining" literally millions of calls - and has been given access by the telecommunications companies to "switching" stations through which foreign communications traffic flows.

In sum, this is big-time, Big Brother electronic surveillance.

Given the national security implications of the story, the Times said they had been sitting on it for a year. And now that it has broken, Bush has ordered a criminal investigation into the source of the leak. He suggests that those who might have felt confidence they would not be spied on, now can have no such confidence, so they may find other methods of communicating. Other than encryption and code, it is difficult to envision how.

Such a criminal investigation is rather ironic - for the leak's effect was to reveal Bush's own offense. Having been ferreted out as a criminal, Bush now will try to ferret out the leakers who revealed him.

Nixon's Wiretapping - and the Congressional Action that Followed

Through the FBI, Nixon had wiretapped five members of his national security staff, two newsmen, and a staffer at the Department of Defense. These people were targeted because Nixon's plans for dealing with Vietnam -- we were at war at the time -- were ending up on the front page of the New York Times.

Nixon had a plausible national security justification for the wiretaps: To stop the leaks, which had meant that not only the public, but America's enemies, were privy to its plans. But the use of the information from the wiretaps went far beyond that justification: A few juicy tidbits were used for political purposes. Accordingly, Congress believed the wiretapping, combined with the misuse of the information it had gathered, to be an impeachable offense.

Following Nixon's resignation, Senator Frank Church chaired a committee that investigated the uses and abuses of the intelligence derived from the wiretaps. From his report on electronic surveillance, emerged the proposal to create the Foreign Intelligence Surveillance Act (FISA). The Act both set limits on electronic surveillance, and created a secret court within the Department of Justice - the FISA Court -- that could, within these limits, grant law enforcement's requests to engage in electronic surveillance.

The legislative history of FISA makes it very clear that Congress sought to create laws to govern the uses of warrantless wiretaps. Thus, Bush's authorization of wiretapping without any application to the FISA Court violated the law.

Whether to Allow Such Wiretaps, Was Congress' Call to Make

No one questions the ends here. No one doubts another terror attack is coming; it is only a question of when. No one questions the preeminent importance of detecting and preventing such an attack.

What is at issue here, instead, is Bush's means of achieving his ends: his decision not only to bypass Congress, but to violate the law it had already established in this area.

Congress is Republican-controlled. Polling shows that a large majority of Americans are willing to give up their civil liberties to prevent another terror attack. The USA Patriot Act passed with overwhelming support. So why didn't the President simply ask Congress for the authority he thought he needed?

The answer seems to be, quite simply, that Vice President Dick Cheney has never recovered from being President Ford's chief of staff when Congress placed checks on the presidency. And Cheney wanted to make the point that he thought it was within a president's power to ignore Congress' laws relating to the exercise of executive power. Bush has gone along with all such Cheney plans.

No president before Bush has taken as aggressive a posture -- the position that his powers as commander-in-chief, under Article II of the Constitution, license any action he may take in the name of national security - although Richard Nixon, my former boss, took a similar position.

Presidential Powers Regarding National Security: A Nixonian View

Nixon famously claimed, after resigning from office, that when the president undertook an action in the name of national security, even if he broke the law, it was not illegal.

Nixon's thinking (and he was learned in the law) relied on the precedent established by Abraham Lincoln during the Civil War. Nixon, quoting Lincoln, said in an interview, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

David Frost, the interviewer, immediately countered by pointing out that the anti-war demonstrators upon whom Nixon focused illegal surveillance, were hardly the equivalent of the rebel South. Nixon responded, "This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president." It was a weak rejoinder, but the best he had.

Nixon took the same stance when he responded to interrogatories proffered by the Senate Select Committee on Government Operations To Study Intelligence Operations (best know as the "Church Committee," after its chairman Senator Frank Church). In particular, he told the committee, "In 1969, during my Administration, warrantless wiretapping, even by the government, was unlawful, but if undertaken because of a presidential determination that it was in the interest of national security was lawful. Support for the legality of such action is found, for example, in the concurring opinion of Justice White in Katz v. United States." (Katz is the opinion that established that a wiretap constitutes a "search and seizure" under the Fourth Amendment, just as surely as a search of one's living room does - and thus that the Fourth Amendment's warrant requirements apply to wiretapping.)

Nixon rather presciently anticipated - and provided a rationalization for - Bush: He wrote, "there have been -- and will be in the future -- circumstances in which presidents may lawfully authorize actions in the interest of security of this country, which if undertaken by other persons, even by the president under different circumstances, would be illegal."

Even if we accept Nixon's logic for purposes of argument, were the circumstances that faced Bush the kind of "circumstances" that justify warrantless wiretapping? I believe the answer is no.

Is Bush's Unauthorized Surveillance Action Justified? Not Persuasively.

Had Bush issued his Executive Order on September 12, 2001, as a temporary measure - pending his seeking Congress approval - those circumstances might have supported his call.

Or, had a particularly serious threat of attack compelled Bush to authorize warrantless wiretapping in a particular investigation, before he had time to go to Congress, that too might have been justifiable.

But several years have passed since the broad 2002 Executive Order, and in all that time, Bush has refused to seek legal authority for his action. Yet he can hardly miss the fact that Congress has clearly set rules for presidents in the very situation in which he insists on defying the law.

Bush has given one legal explanation for his actions which borders on the laughable: He claims that implicit in Congress' authorization of his use of force against the Taliban in Afghanistan, following the 9/11 attack, was an exemption from FISA.

No sane member of Congress believes that the Authorization of Military Force provided such an authorization. No first year law student would mistakenly make such a claim. It is not merely a stretch; it is ludicrous.

But the core of Bush's defense is to rely on the very argument made by Nixon: that the president is merely exercising his "commander-in-chief" power under Article II of the Constitution. This, too, is a dubious argument. Its author, John Yoo, is a bright, but inexperienced and highly partisan young professor at Boalt Law School, who has been in and out of government service.

To see the holes and fallacies in Yoo's work - embodied in a recently published book -- one need only consult the analysis of Georgetown University School of Law professor David Cole in the New York Review of Books. Cole has been plowing this field of the law for many years, and digs much deeper than Yoo.

Since I find Professor Yoo's legal thinking bordering on fantasy, I was delighted that Professor Cole closed his real-world analysis on a very realistic note: "Michael Ignatieff has written that 'it is the very nature of a democracy that it not only does, but should, fight with one hand tied behind its back. It is also in the nature of democracy that it prevails against its enemies precisely because it does.' Yoo persuaded the Bush administration to untie its hand and abandon the constraints of the rule of law. Perhaps that is why we are not prevailing."

To which I can only add, and recommend, the troubling report by Daniel Benjamin and Steven Simon, who are experts in terrorism and former members of President Clinton's National Security Council. They write in their new book The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Right, that the Bush Administration has utterly failed to close the venerable loopholes available to terrorist to wreak havoc. The war in Iraq is not addressing terrorism; rather, it is creating terrorists, and diverting money from the protection of American interests.

Bush's unauthorized surveillance, in particular, seems very likely to be ineffective. According to experts with whom I have spoken, Bush's approach is like hunting for the proverbial needle in the haystack. As sophisticated as NSA's data mining equipment may be, it cannot, for example, crack codes it does not recognize. So the terrorist communicating in code may escape detection, even if data mining does reach him.

In short, Bush is hoping to get lucky. Such a gamble seems a slim pretext for acting in such blatant violation of Congress' law. In acting here without Congressional approval, Bush has underlined that his Presidency is unchecked - in his and his attorneys' view, utterly beyond the law. Now that he has turned the truly awesome powers of the NSA on Americans, what asserted powers will Bush use next? And when - if ever - will we - and Congress -- discover that he is using them?

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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