Dispatches from the Creation Wars

1. Any ballpark estimate -- any number at all, really -- of how many Americans had their communications intercepted by the NSA through the "President's Surveillance Program." The fact that this is missing from an inspectors general report is a glaring oversight.

2. The error rate in collecting terrorism communications. According to the inspectors general of the CIA, FBI and NSA, much if not most of the information collected by the program was unrelated to terrorism. The NSA inspector general found "no evidence of intentional misuse" of the surveillance efforts. Which is groovy. But it still doesn't tell us how much irrelevant data the program collected, which is a crucial question when determining its efficacy.

And those are important things left out. Even more important, as Greenwald points out, is that the report makes clear that there was a whole range of blatantly illegal surveillance efforts -- the report calls them "Other Intelligence Activities" -- that were in place for at least two years until they were stopped, and there is no detail at all in the report on what those activities were and who may have had their rights violated by them as a result.

And ever since James Comey testified in May, 2007 that he was willing to give legal approval to the illegal program that the NYT disclosed, but had threatened to resign if a whole slew of other blatantly criminal surveillance activities did not cease, it has been publicly known that there are still many illegal surveillance programs which remain concealed. In the wake of the Comey testimony in 2007, current OLC official Marty Lederman noted that even the right-wing radicals who approved of the program revealed by the NYT (Comey, Goldsmith, Ashcroft) were so disturbed by the blatant criminality of these other programs that they were going to resign en masse if they did not cease. As Lederman put it:

If [what the NYT revealed] is the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? . . . . This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?

Amazingly, that key question goes completely unanswered in the IG Report. We still have absolutely no idea what the Government was doing regarding domestic spying ("Other Intelligence Activities") that -- even in the eyes of Far Right, Bush-appointed legal theorists who approved of the program the NYT revealed -- were so blatantly illegal that they would quit if they did not cease. Given that these programs allegedly stopped in 2004 once the DOJ refused to certify their legality, what possible justification is there for continuing to conceal blatantly criminal acts by our high government officials? While the IG Report fails to identify what these "Other Intelligence Activities" were, it does make crystal clear -- on pp. 28-29 -- just how blatantly illegal they were...

And even DOJ lawyers so extreme that they were willing to approve the illegal NSA program we know about concluded this was so. Nonetheless, they went on for two years at least, and Bush ordered them to continue even after his own DOJ concluded they were criminal.

He is referring here to the fact that nearly a dozen top officials of the DOJ threatened to quit in 2004 if Bush ignored their legal advice and continued a range of programs that they had concluded were illegal. Imagine if you will a surveillance program so blatantly unconstitutional that even John Ashcroft thought it was worth resigning over. A program, or programs, that bad were in place for at least two years after 9/11. But this report invents a euphemistic name for them and goes into no detail at all on what they were.

As Greenwald puts it, "The IG Report does nothing to illuminate this central question. And President Obama continues to actively impede the only meaningful avenues for disclosure and accountability: a Congressional investigation armed with subpoena power and/or a judicial adjudication of the legality of these acts."

The IGs do not have that power. They can't compel testimony. Nearly all of the high-ranking Bush administration officials implicated in this report -- David Addington, John Yoo, Dick Cheney, Andrew Card, John Ashcroft, George Tenet -- refused to speak to them. They also can't force document to be turned over. And Congress made sure last year that this would be the only such investigations:

The IG's have no power at all to compel them to do so; it's entirely optional. That -- aside from the fact that they work within the Executive Branch and for the very agencies they are supposed to investigate -- is what makes IGs such an inadequate substitute for real oversight: no matter how much integrity and independence they might have, they are extremely limited in what they can achieve.

As any litigator will tell you, the lack of power to compel key witnesses to answer questions and produce documents severely hampers any ability to conduct a real investigation. Yet, when they passed the FISA Amendments Act -- which legalized Bush's spying programs and immunized lawbreaking telecoms -- Democratic leaders kept pointing to the requirement of an IG Report to placate those complaining that they were whitewashing and legalizing Bush abuses. But IGs are simply incapable, given their very limited powers and their institutional allegiances, of any real investigation of this sort. What they were unable to disclose in this Report underscores how limited are their investigative abilities.

Guess which way Obama voted on that act?

When the Democratic-led Congress -- with Barack Obama on board -- responded to the NSA scandal by enacting a law (the FISA Amendments Act of 2008) to legalize Bush's criminal surveillance programs and retroactively immunize the private-sector telecom lawbreakers, many of us wrote at the time that the law Obama supported actually authorized even broader eavesdropping powers than the illegal Bush program itself asserted...

That, for me, remains the single most compelling evidence of how ludicrously broken and corrupt our political class is on a very bipartisan basis. George Bush gets caught red-handed breaking long-standing laws in how he spies on Americans. The "opposition party" which controls the Congress not only blocks any investigations and attempts to impose accountability. Far worse, they proceed to legalize the very criminal programs that were exposed and to vest even greater surveillance powers in the very administration that got caught deliberately breaking the law.

This may be another reason why Obama is dead set against any real investigation of this stuff -- because if it comes out just how serious the constitutional violations were, he'd have to face the rather obvious question of why he voted in favor of a bill to expand that authority and immunize everyone involved.