Left to chance

The ACLU has tested President Obama early, requesting dozens of secret documents covering the Bush administrations’ justification for its spying and interrogation programs. If we could gleam even a bit of insight into the real excuses for the warrantless wiretapping and NSA eavesdropping, it could set a precedent for future government transparency.

For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government’s deliberative process. The ACLU’s request, however, comes after President Barack Obama last week rescinded a 2001 Justice Department memo that gave agencies broad legal cover to reject public disclosure requests.

Obama also urged agencies to be more transparent when deciding what documents to release under the Freedom of Information Act. … “The president has made a very visible and clear commitment to transparency,” said Jameel Jaffer, the director of the ACLU’s National Security Project. “We’re eager to see that put into practice.” The collection of memos, written by the Justice Department’s Office of Legal Counsel, are viewed as the missing puzzle pieces that could help explain the Bush administration’s antiterrorism policies. Critics of the prior administration also see the release of the documents as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.

While John McCain is still hawking that ‘maverick’ tag, don’t believe the hype, instead, let’s look at some recent statements he made that perked my interest, coming out in favor of the Bush administrations’ stance on FISA, warrantless wiretapping/eavesdropping and executive power. Funny thing is, he had the exact opposite opinion on these topics when he was asked in December 2007!

On Wednesday, I documented John McCain’s complete reversal of views — in the last six months alone — on FISA, warrantless eavesdropping and executive power. McCain’s diametrically opposite views were contained in a questionnaire McCain completed for The Boston Globe last December (wherein he rejected many of the Bush/Cheney theories of presidential omnipotence and warrantless eavesdropping) and then a statement McCain issued this week to National Review (wherein he embraced those same theories in order to persuade the Right that he approves of and would continue Bush’s lawless surveillance policies).

Another source states more of what transcribed at the National Review:

A top adviser to Senator John McCain says Mr. McCain believes that President Bush’s program of wiretapping without warrants was lawful, a position that appears to bring him into closer alignment with the sweeping theories of executive authority pushed by the Bush administration legal team.

In a letter posted online by National Review this week, the adviser, Douglas Holtz-Eakin, said Mr. McCain believed that the Constitution gave Mr. Bush the power to authorize the National Security Agency to monitor Americans’ international phone calls and e-mail without warrants, despite a 1978 federal statute that required court oversight of surveillance…

Wiretaps approved by a secret U.S. court overseeing foreign intelligence rose last year, even as Congress was debating a Bush administration request for more authority to fight terrorism.  “The Justice Department said on Wednesday that government applications to the Foreign Intelligence Surveillance Court for wiretap approval rose to 2,371 in 2007, from 2,176 a year earlier. The court’s approval is required to intercept a call involving an American or calls routed through the United States. It was the fifth annual increase in wiretap approvals since the September 11 attacks in 2001 spurred President George W. Bush’s administration to incorporate foreign intelligence wiretaps into its strategy to fight global terrorism. Civil liberties groups and other opponents, angered by a secret warrantless domestic wiretapping program have urged sharp restrictions and oversight of the wiretaps. The latest figures were released as the Justice Department announced it was reorganizing its national security division, which represents the government before the secret court, to cope with the increased workload and staff. The division’s intelligence staff, which has grown to more than 100 lawyers from 20 in 2000, will work in a new office of intelligence, which will be given an expanded role in overseeing foreign wiretapping to ensure it complies with the law.“