Anti-Healthcare Protests: Why They Are Nonetheless Alarming

Although I emphatically do not consider the Republican Party fascist, I do consider its behavior since the 1990's both disturbing and dangerous to the future of democracy. Sarah Robinson's mistake was her exclusive focus on fascism. One of her top readers makes the same mistake, saying that the fascist analogy is flawed and we are really more like the Roman Republic.

The problem here is that all historical events are individual and unique. Exact parallels do not exist. Many popular governments have failed throughout history. Only two have become full-fledged classical fascist regimes (although fascist movements may have played a role in the downfall of others). To recognize when there is danger, it is better to move from the narrow issues of classical fascism (a unique event unlikely to repeat) to the broader issue of how democracies fail in general, to see what overall patterns recur.

Occasionally a foreign power is to blame. The Thirty Tyrants in Athens were installed by the Spartans. The French Third Republic fell to the German Army. Nascent democracies in Eastern Europe after WWII were undone by the Red Army.

But in the absence of an overwhelming foreign power, for all the individual variations, there is almost always the same underlying pattern. Rival factions become increasingly polarized. At least some factions come to value their own power over any sort of procedural fairplay. Indeed, such factions may be openly contemptuous of procedural fair play. Strife between factions escalates. Political violence becomes increasingly common, and grows. Democratic institutions are unable to contain the ever escalating factional strife and eventually break down.

The outcome is not always the same. Sometimes one faction comes to power through semi-legal channels and uses the state to suppress its opponents. That was the pattern for the classical fascists in Germany and Italy, as well as in Portugal. But democracies can fail in other ways as well. Sometimes the collapse into civil war and anarchy (Lebanon, the United States). Sometimes the military takes over to end the factional strife by force (Chile). Sometimes there is a complex combination of these outcomes (ancient Rome, modern Spain). But the basic pattern of escalating polarization, factional strife, and political violence recurs every time, whether in ancient Rome, Germany, Italy, Spain, Portugal, Chile, Lebanon, or even the United States. (Let's face it, when democratic institutions fail to resolve the leading issue of the day and a civil war ensues with 600,000 dead, that has to count as a serious failure of democracy, even if both sides in the war maintained their committment to democracy throughout).

To date we are still far from being a failed democracy. A strong democratic heritage and consciousness, and a tendancy across the political spectrum to equate democracy with national identity make it just about impossible for anyone to reject at least the outward forms of democracy. But polarization is reaching a fever pitch. Republicans are refusing the recognize Democrats as real Americans or legitimate political players. Willingness by prominent, respectable Republican leaders to liken Obama to Hitler and spout flagrant lies about his policies, anti-health care demostrators shouting down speakers and seeking to shut down debate are all signs that our traditional notions of fairplay are being abandoned. No political violence so far, but people are bringing guns to political demonstrations. Militias are returning. Death threats against Obama are four times the volume of death threats against Bush.

Overall prognosis: It looks bad, but could be a lot worse.

So what do I recommend?

First, don't be intimidated. Pass a healthcare reform. It may escalate polarization in the short run, but Republicans made a mistake in telling so concrete and easily falsifiable lie as death panels killing granny. If healthcare reform passes and death panels do not, in fact, kill anyone's grandmother, it is going to be difficult to convince people that they did.

Second, when Republicans fight dirty, don't adopt the same techniques. That will just escalate the polarization further. Call them on it. Every time a Republican of any prominence equates Obama to Hitler, introduce a resolution in Congress condemning the characterization. Point out that our side honorably voted for a resolution condemning MoveOn.org for a similar offense. When militia types bring guns to a demonstration, point out, as E.J. Dionne has that "[A]n armed citizenry is not the basis for our freedoms. Our freedoms rest on a moral consensus, enshrined in law, that in a democratic republic we work out our differences through reasoned, and sometimes raucous, argument. Free elections and open debate are not rooted in violence or the threat of violence. They are precisely the alternative to violence." Shame is the appropriate remedy for shamelessness. Let's start using it.

Third, expect this to happen next time and prepare in advance. Keeping in mind that (1) Republicans will try to shut down any significant Democratic initiative and to make Democratic success impossible, and (2) whoever speaks first and most aggressively controls the media narrative, what is the obvious conclusion? That every time the Democrats launch an initiative, it must be introduced with huge media blitz, explaining over and over, in terms understandable to an ordinary, low-information voter, WHAT THE HELL WE ARE PROPOSING. I am not suggesting lying or blatant propaganda, though over simplification is inevitable. My point is simply the earlier and more often voters get hit over the head with WHATEVER THE HELL WE ARE PROPOSING, the more difficult it will be to distort later on. Consider the following polling statistics. When asked simply whether they favors or opposed the proposed healthcare bill, respondents opposed it 42% to 36%. When the pollster explained WHAT THE HELL WAS IN IT in accessable terms, the results shifted to 53% in favor to 43% against.

Finally, in addition to the depressing study of democratic governments that failed, we should also study ones that became dangerously polarized, but ultimately pulled back from the abyss. The French Third Republic during the Dreyfus Affair and the transition between Fourth and Fifth French Republics immediately come to mind. No doubt there are many others as well. Not being xenophobes, we are not afraid to learn from other countries, even the French. Let's see what they can teach us about how democracies avoid failure.

UPDATE:
I cannot recommend highly enough this post by Glenn Greenwald. He encapsulates perfectly everything I want to say about Republicans. In particular, the attacks on Obama are not, in the end about race. They are about Republicans being unwilling to recognize any Democratic President as legitimate.

Anti-Healthcare Protests: Why They Are Not Fascist

It is not only Republican lies and hysteria about healthcare reform that deserve to be condemned. Our own side has committed its own share of alarmism with talk of "Brownshirt tactics." In particular, I am belatedly responding to Sarah Robinson's claim at Orcinus that Republicans have gone full-on fascist over healthcare. Taking historian Robert Paxton as her source, Robinson argues that the Republican party has gone fascist because we are no longer seeing any daylight between conservative elites and the right-wing mob.

All through the Bush years, progressive right-wing watchers refused to call it "fascism" because, though we kept looking, we never saw clear signs of a deliberate, committed institutional partnership forming between America's conservative elites and its emerging homegrown brownshirt horde. . . . America's conservative elites have openly thrown in with the country's legions of discontented far right thugs.

The fact that "brownshirt thugs" have not engaged in any actual violence so far, certainly nothing on the scale that, say southern racists deployed against Civil Rights workers in the 1950's and '60's is less important to Robinson than that conservatives have openly aligned themself with them.

I see several problems with this analysis. For one thing, while it is true that both Mussolini and Hitler came into power by forming an uneasy alliance with the conservatives, it is also true that, contrary to the common Marxist analysis of the day, it was not the conservatives who were using the fascists to achieve their goals. It was the fascists who were using the conservatives. Granted, one may argue today that the GOP has been taken hostage by its wingnut base, and that sane conservatives have little choice but either to join the Democrats or to go along for the ride. But I see no evidence that the truly insane members of the GOP have the sophistication to manipulate the conservative elite. The manipulating lies over healthcare looks pretty one-sided to me.

The tactical differences between (German and Italian) conservatives and their fascist counterparts are also significant. Both parties shared many goals such as crushing the left, ending strikes, and restoring national greatness. But fascists did two things that should scare the hell out of any right-thinking conservative (and did alarm German and Italian conservatives). They whipped up the ugly passions of the mob, and they used street thugs and mob violence to achieve their goals. Now obviously the leaders of the GOP and their allies in Fox News and talk radio are showing themselves eminently willing to whip up the ugly passions of the mob. But so far I see no evidence, none whatever, that they are willing to condone actual violence and street thuggery. Some have even gone so far as to condemn taking guns to protests (especially while carrying signs urging some human sacrifices to the tree of liberty). Granted, telling armed men that Obama wants to kill your grandmother is the sort of thing that tends to invite violence. But so far I have every reason to expect that if any violence did break out, conservative elites would take alarm and seek to reign it in.

And finally, Robinson, following Paxton, strains too hard for paralells, trying to force today's situation to match intra-war Germany and Italy. (Mussolini's Blackshirts broke up a farmworker's strike. Republican nativists threaten Mexican farmworkers. This is starting to look almost Goldberg-esque). I prefer to take a broader and more general definition of fascism and see how well today's Republican party fits. This conservative historian offers a fairly decent definition of fascism, "a paramilitary party that has taken over the state and claimed an effective monopoly of political activity."* Or, aspirationally, a paramilitary party seeking to take over the state and claim an effective monopoly on political activity. That is something sufficiently alien and odious to our American political tradition that any open attempt would arouse intense resistence and rejection.

Can it happen here? Has it? Robinson quotes Paxton as suggesting that it has, that the Reconstruction Ku Klux Klan was the first authentically fascist movement. Was the Klan "a paramilitary party . . . claim[ing] an effective monopoly on political activity"?

Well, the Democratic Party during the Reconstruction clearly did not acknowledge the legitimacy of the Republican Party and sought (successfully) to make the South a one-party state. Whether the Democrats would have accepted a rival party that was not associated with the hated North and did not advocate racial equality is an open guess.

Could the Klan be considered a paramilitary adjunct of the Democratic Party? Well, it was paramilitary in the sense that it used violence and intimidation, and an adjunct of the Democratic Party in the sense that it wanted to (and ultimately did) suppress the Republicans. But the Klan was neither paramilitary nor an adjunct to anyone in the sense that it had no hierarchical command structure and was not really under anyone's control. Also, the Klan differed from Mussolini's Blackshirts or Hitler's Brownshirts in that it basically dissolved once it achieved its goal. While Mussolini and Hitler, once in power, set up organized secret police to take the place of their street thugs, Southern Democrats, once in power, did not maintain it with a paramilitary, unless one counts ad hoc lynch mobs even less organized than the Klan.

So, what about Republicans? Does the latest outburst of hysteria make them "a paramilitary party . . . claim[ing] an effective monopoly on political activity"? Only by stretching those terms beyond any reasonable definition. Yet at the same time, it has just enough tendancies in that direction to be disturbing.

It has been apparent since 1992 that Republicans are not willing to accept any Democratic President as legitimate. Bill Clinton was a junkfood-eating Arkansas hillbilly who belonged to the conservative Democratic Leadership Council that sought to attract votes by bringing the Democratic Party toward the center. Yet throughout his term of office, Republicans denounced him as a wild-eyed radical, invented talk radio and Fox as weapons against him, dug constantly into his tiniest indiscretions, and ultimately impeached him over a blow job. Howard Dean was denounced as a deranged radical in the 2004 primaries until Democrats became so alarmed that they chose the presumably more electable John Kerry -- only to see the hostility almost seemlessly transfer. For 16 years, Republicans have been working themselves into a frenzy of hatred of Hillary Clinton in preparation for the day she ran for President. Yet the moment it became clear that Obama would be the nominee, they once again promptly and seemlessly transferred their hostility, actually discovering a belated respect for Hillary.

This is linked to the belief that only conservatives are "real Americans" and the quest for a permanent Republican majority. Yet a true one-party system would never be tolerated in the United States. The words permanent Republican majority make the point clear -- Democrats will be tolerated and allowed to run for office at all levels, so long as they do not exercise any actual power.

As for a paramilitary party, that, too, is completely unacceptable in this country (the Ku Klux Klan notwithstanding). Crowds at town halls who shout down the speakers and spout outrageous lies not paramilitary -- they are neither violent nor have a command structure.

That leaves the militia movement, which is once again reemerging. Now obviously the militia movement is not a paramilitary arm of the Republican Party. In fact, in the 1990's, in could plausibly deny being partisan. It got its first stirrings under the senior Bush, who alarmed them with talk of the "new world order" and offended them by fighting the Gulf War through the UN instead of unilaterally. The Ruby Ridge incident took place under Bush's watch. The destruction of the Branch Davidians at Waco was genuinely shocking. And the Clinton Administration really was seeking gun control measures. In short, the militias could claim to be upset over more than just having a Democrat in the White House. And the demise of the militia movement could be attributed at least as much to 9-11 as to the election of Bush Junior.

But the return of the militias coinciding exactly with the election of a Democrat, together with the absence of any proposed gun control legislation or anything else that could reasonably be taken as provocation makes their real agenda clear. They are angry that a Democrat won the Presidency and cannot accept him as legitimate. Now, obviously this does not make the militia movement a paramilitary adjunct of the Republican party, as opposed to independent individuals who think that a Democrat in the White House is reason enough to prepare for armed resistence. But when Fox and talk radio keep spouting, and Republican leaders keep implicitly endorsing, outrageous paranoid lies that inflame and encourage militia types, it gets harder and harder to deny a certain indirect collusion.

That being said, the militias have never used violence and intimidation to sway the outcome of an election, which makes them unlike Blackshirts, Brownshirts, or the Klan. It is also no doubt true that in case Republicans achieve Karl Rove's goal of a permanent majority, the militias will go away, rather than serve as their paramilitary arm. To the extent Republicans dream of a one-party dictatorship, it is a soft dictatorship on the Mexican model, not the totalitarian variety.

In short, calling Republicans fascists is both false and dangerous. But Republican behavior in the healthcare debate is also dangerous and alarming. My next post will discuss what I see as the real danger.
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*To this s/he adds militaristic policy, the abrogation of the procedures of liberal democracy, the actual militarization of society, the successful penetration of the state into the everyday life of the individual, and a very significant degree of actual state regulatory control over the economy. But right now I am less interested in what fascists do once in power that how they seek to get there.

When Politics Eclipse Policy

I had planned a belated post on the Torture Memos, but it will have to be even more belated, because the whipped-up hysteria over healthcare reform is becoming more and more disturbing. In fact, mendacity and sheer insanity of the protests is becoming so disturbing and so far out of bounds of what was formally acceptable debate that the tone of the protests is beginning to eclipse the issue itself.

What is so disturbing and out of bounds here?

Certainly not the existence of the dispute. I do not doubt that Republicans have sincere, principled disagreements with the Democrats' proposal. Nothing wrong with that. That is politics as usual and might, by itself, even be amenable to compromise. Two factors prevent compromise. One is a matter of policy -- Democrats and Republicans and ideologically incompatible views of how to handle rising health care costs -- regulate more versus regulate less. The other is political -- the opposition party wants to thwart the ruling party to keep it from looking successful. Ideologically, Republicans fear that universal health care will go badly. Politically, they fear it will go well. But this dilemma, too, is nothing new or, by itself, especially disturbing.

What is disturbing is the outrageousness of the lies being told about this proposal, how broadly they are being spread, the willingness of the senior Republican leadership to go along with them, the the hysteria they are whipping up. Yes, a certain degree of spin, distortion and deception is a normal part of political debate. When Bill Clinton came out with his own health care proposal, there was a great deal of discussion among opponents about the horrors of single payer, but no acknowledgement that he was not, in fact, proposing a single payer. But there was nothing at the time like accusations of "death panels" pulling the plug on Grandma, comparisons to Hitler, and even remote insinuations that the elderly, the sick and the handicapped would be murdered. Yes, there have always been fringe groups of paranoids who held beliefs like this, but these are views being propagated, not by fringe groups, but by mainstream channels like talk radio and Fox News, and being pushed (well, usually hinted at in such a way as to maintain plausible deniability) by mainstream Republican leaders. The Republican leadership quite simply has decided to sever any ties to real world fact and just shriek out any lie that serves their purpose. Such a breathtaking level of cynicism is both new and alarming.

Also alarming are the angry crowds showing up, believing these outrageous lies, shouting down anyone who disagrees with them and even packing heat. Granted, there have not been actual outbreaks of violence. But telling an armed man that Obama wants to kill your grandmother is playing with fire.

Even more disturbing is that shrieking blatant lies seems to be working. One might dismiss a recent poll saying that support for the bill before Congress has fallen to 36% in favor an 42% opposed. More disturbing is that fully 45% of all respondents at least partially believe in the "death panels." And, although respondents are about evenly divided in their opinion on the protests themselves, the critical independents say 50% to 34% that the protests have done more good than harm. The protests, in other words, are swaying, rather than repulsing, swing voters. As one commentator remarks, "[I]t creates an enormous incentive to lie, blatantly and repeatedly, to the public. There are no real penalties, and the number of Americans who'll believe nonsense skews the debate in the liars' direction." This means that whenever any other major Democratic initiative comes up, Republicans will repeat the tactic.

So what is the agenda? Well, in the short run, presumably to shut down a Democratic Congress, to make it impossible for Democrats to pass any major initiative. Presumably the goal is to drive the base into a frenzy and associate Democrats in the mind of swing voters with ineptitude and inability to get anything done. The short run goal is presumably to win Congress in 2010, just as the Republicans did in 1994, and to win the White House in 2012.

But there is a problem here. Whipping the base into a frenzy and turning swing voters off of Democrats as inept is not really a good long-run strategy. Frenzies are exhausting and not sustainable. And if the Republicans do win a majority in 2010, they would do well to remember the lessons of 1995. Upon taking over Congress, Republicans promptly overreached. Demonizing Democrats can win elections and turn voters off of the Democratic agenda, but it will not win any converts to the Republican agenda. No one much liked what Gingrich and his crowd were trying to, and Bill Clinton rebuilt his Presidency by standing up to the Republican Congress.

The long-run goal, presumably, is to continue working on Karl Rove's project for a permanent Republican majority. Needless to say, the 2008 election was a setback to that goal, but to judge from the level of hysteria the Republican Party and its media allies are seeking to whip up, it apparently has not been abandoned.

From the very start, Rove's plan was not structurally sound. Permanent* control of the government by one party is stable only if that party enjoys a strong majority of popular support. And over the long haul, that sort of support is sustainable only by enacting sound policies and competently implementing them. Rove wanted to take a country fairly evenly divided between the parties, muster 51% support for Republicans, and exclude the other 49% from power entirely. To do this, he focused on ignoring moderate swing voters, rallying the base, demonizing nearly 49% of the population, and enacting policies based on their appeal to favored constituencies, without much regard to their effectiveness. The result was a general ineptitude that turned an evenly divided population sharply against Republicans and their ideas. Yet the Republicans show no intention of changing their policies.

So how do you build a permanent Republican majority when your party does not command majority support and your ideas are widely unpopular? To judge by the hysteria currently being whipped up, the answer appears to be to undermine and delegitimize the Democrats, by fair means or foul. Demonize any Democrat who has the unmitigated audacity to usurp the Presidency. Turn their presidency into a frenzy of accusations and ugliness. Proclaim the Big Lie on Fox and across talk radio. Make it impossible for Democrats to pass any significant legislation. Whip up the mob if they appear to be succeeding. And explain that given the level of oppression underway, you completely understand the returning militia movement.

Granted, none of this will actually make Republican ideas or their implementation any more palatable. But it may at least be more palatable than the paralysis and orgy of recrimination accompanying a Democratic government. What we are seeing now looks like an attempt at permanent Republican majority by blackmail -- vote for us, or we'll shut the country down.

You think the hysteria in the Clinton years was bad? You ain't seen nothing yet.
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*By "permanent" here I do not actually mean until the end of time, and do not think Rove meant it that way either. Beyond the lives of the present generation is a fair definition of permanent in a this context.

Healthcare Tradeoffs: We Don't Like the Ones the Market Makes

Moving past the hysteria about "death panels" and "pulling the plug on granny" to written columnists there are some serious conservative critiques of the proposed healthcare plan. My local newspaper ran one by John Stossel that perfectly reasonable point. Healthcare proposals are claiming to be able to do three incompatible things -- extend coverage to more people, control costs, and not interfere with people's freedom of choice. To achieve any two of these things, the third must give way. It's a fair point. I would like to have a serious discussion of how to find the appropriate balance. But the current atmosphere makes such a debate impossible.

Consider the hysterical screaming. Death panels will pull the plug on granny! A government bureaucract will come between you and your healthcare! (Anything that reduces freedom of choice is out). How are we going to pay for it all! Will this increase my taxes? (Costs must be contained). They're going to cut Medicare! The old, the sick and the handicapped will suffer most! (So much for excluding more people).

So what does Stossel propose? Well, other than saying that the market knows best, he is careful not to say. In an earlier column, Stossel warns of the monstrous despotism that will occur if the proposed bill pases. Evil government bureaucrats and social engineers make our medical decisions for us. Innovation will cease. Monstrous distortions will enter into the system. We will all end upon a Hayekian road to serfdom. Carefully ignored in the earlier column is that we already have such a system for everyone ever 65 -- it's called Medicare. If all these horrible things will come about under universal healthcare, shouldn't there be at least some sign of them under Medicare. Unfortunately for Stossel, he is able to point to only one -- it has cost a great deal more than originally anticipated.

In his current column, Stossel makes clear that current Medicare rates are unsustainable. Government will have to do one of three things -- cut Medicare spending, raise taxes, or start limiting what it will cover. Stossel takes great care not to say which one of these options he favors. But he makes clear that raising taxes will be disasterous and interfering with patient decisions will be despotic. Cutting payments he merely regards as politically unpalatable. This gives a hint of which approach he truly favors.

Ultimately, Stossel has only one answer to give -- let the market decide. Given his way, he would undoubtedly eliminate Medicare and Medicaid as unwarranted government interference with the free market. Lamenting American's failure to fear the threatened despotism, Stossel complains that he gets comments like, "I guess the 47 million people who don't have health care should just die, right, John?" Significantly, he does not answer that question. But from a strict free market perspective, the answer is yes. If you take a gamble not buying health insurance, you should face the consequences of losing it.

Stossel's proposal -- let the free market decide -- will undoubtedly give theoretically unlimited choices to consumers, restricted only by their ability to pay. It will definitely cut costs. But it will do so at the cost of excluding much greater numbers of people, including many otherwise uninsurable people now on Medicaid or Medicare. A whole lot more people will die. Many others will have chronic, painful conditions untreated. The free market, quite simply, will control costs by excluding more and more people, rather than by limiting choices. To someone like Stossel who regards preserving free market choices as the supreme good, this is acceptable. To most of us, it is not.

Belated Opinion on the Inspector General's Report -- Despair

At last I have gotten to a rather belated review of the Inspector General's Report on warrantless surveillance under the Bush Administration. Although the existence of the Report seemed a small ray of hope, the contents move me distinctly in the direction of despair.

The most obvious point is that the Report does not explain what the program in question was (that remains classified), but it does make clear that the publicly acknowledged "Terrorist Surveillance Program" (TSP) was only a small part of what was going on. It identifies the total illegal wiretapping as the President's Surveillance Program (PSP), of which the TSP was only a part. Information was collected by the NSA and distributed to various other agencies, mostly to people who were unaware of the source of the leads they were given. An internal NSA audit of the surveillance found no evidence of intentional misuse. (p. 13).

Surveillance activities were intensely secret. John Yoo was the only member of the Office of Legal Counsel (OLC) to be aware of the program. His memo approving warrantless surveillance, in addition to be very dubious in its interpretation of the laws, factually misrepresented what was going on, arguing for the legality of the activities that constituted the TSP and largely ignoring the other illegal wiretaps. Attorney General John Ashcroft approved the program based on Yoo's memo, not realizing that it misrepresented the full scope of warrantless surveillance. The top four members of Congress and later the Gang of Eight were briefed on the program, as was the presiding judge of the FISA court. The report strongly hints that material obtained through warrantless surveillance was sometimes used to apply for FISA warrants. (p. 18).

The 2004 Justice Department revolt began after John Yoo left and his replacement began to realize what was being approved. John Ashcroft became alarmed when he realized what he had been authorizing. James Comey and Jack Goldsmith joined in the revolt. Their objections appear not to have been rooted in the activities themselves, which they might have approved of, but in the absence of legal authority for them. In other words, they appear to have believed that the law as it stood was unreasonable restrictive, but must still be obeyed. White House officials then met with the Congressional Gang of Eight to discuss the situation, with no Justice Department officials present. Alberto Gonzales claimed the Eight agreed the surveillance must continue. The Democrats in the group denied it. (p. 23).

President Bush, who up till then had been authorizing warrantless surveillance every 45 days based on Yoo's rather vague assurances, became more explicit when the Justice Department refused to cooperate. He signed an authorization stating that, as Commander-in-Chief, he had the authority to authorize such wiretapping despite the Justice Departments disapproval and despite any statute to the contrary. He also expressly claimed authority to do all the things that the Yoo memo had discreetly concealed. It was at this point that Justice Department officials began threatening mass resignations. The parties eventually reached an accommodation in which the President modified or discontinued some of the more offensive actions, and the OLC justified the remaining ones under the Authorization to Use Military Force (AUFM). The illegal warrantless wiretaps were apparently discontinued when they were legalized under the modified version of FISA in 2007.

I suppose we can take at least some comfort in knowing that the warrantless surveillance, although illegal, was at least directed toward legitimate security concerns and not deliberately misused. Still, the report leaves a great many obvious and disturbing questions unanswered.

What was the President's Surveillance Program? The Report does not discuss this, since it is classified. It does drop a few hints, though. The officially acknowledged "Terrorist Surveillance Program" involved "the interception of the content of communications into and out of the United States where there was a reasonable basis to conclude that one party to the communication was a member of al-Qa'ida or related terrorist organizations." (p. 1) By contrast, according to NSA Director Michael Hayden, unacknowledged activities "were targeted and focused with the purpose of 'hot pursuit' of communications entering or leaving the United States involving individuals believed to be associated with al-Qa'ida." (p. 15). What's the difference? The report offers one tiny clue, quoting Hayden as saying the activities were "more aggressive" than FISA allowed, but "less intrusive" because the period of time was much shorter than authorized by a FISA warrant. This may be a confirmation of reports that in fact the NSA cast a broad net over international calls, filtering for suspicious sounding conversations, first by computer and later by human listeners.

How useful was the program? The Inspector General cannot even guess. Director Hayden vouched that it was extremely useful, and that if it had been in place before 9-11, it would have caught two of the hijackers. (p. 31). Hayden, as director of the NSA is perhaps in the best position to know, but also has the strongest interest in defending the program. Other intelligence agencies found the program to be useful, but only one tool among many, and were unable to quantify its value. The above report alleges that about 5,000 international calls were listened into without a warrant, yielding probable cause to apply for a warrant in about 10 cases a year.

What did Congressional leaders (and the presiding FISA judge) know and when did they know it? Talking to Congressional leaders (and FISA judges) was outside the Inspector General's mandate. Hayden boasted that he briefed Congressional leaders on surveillance 49 times, including 17 times before the program was exposed in the press, and that no one objected. (p. 16). Alberto Gonzales reported that during the Justice Department revolt, the Gang of Eight insisted that program must go on, a claim that Democrats in the group dispute. But how candid was the Administration with leaders of Congress (or FISC)? The Report establishes that John Yoo was the only member of the OLC aware of the program, that his memo factually misrepresented it, and that John Ashcroft, Bush's own Attorney General relied on this inaccurate memo and did not know until 2004 what he was authorizing. So, was an Administration that deceived is own Attorney General about what it was up to completely candid with leaders of Congress (and the presiding FISA judge)? Let's just say it's possible. I can't disprove it. But it seems unlikely.*

How far was the program scaled back after the 2004 revolt? This, too, is unclear. The Report says only that the President agreed to "modify certain PSP intelligence-gathering activities and to discontinue certain Other Intelligence Activities that DOJ believed were legally unsupported." (p. 29). It does not say whether the activities that continued were limited to the publicly acknowledged Terrorist Surveillance Program, or were more extensive. Either way, the continued activitied continued to violate FISA.

How many once-illegal activities are now authorized by the broadening of FISA in 2007? Once again, this is unclear, although the report does say that illegal surveillance ceased after the law was broadened.

Certain activities that were originally authorized as part of the PSP have subsequently been authorized under orders issued by the Foreign Intelligence
Surveillance Court (FISC). The activities transitioned in this manner included the international communications that the President publicly described as the "Terrorist Surveillance Program." . . . [The Protect America Act] gave even broader authority to intercept international communications than did the provisions of the Presidential Authorizations governing the activities that the President acknowledged in December 2005 as the Terrorist Surveillance Program.

pp. 30-31, emphasis added. Although this is extremely vague, it seems to suggest that the publicly acknowledged Terrorist Surveillance Program was merely one part of the activities first authorized by FISC and later by Congress. Just as illegal activities in addition to the TSP appear to have continued after the 2004 revolt, such activities appear to have been legalized in 2007. Not clear is whether whatever sparked the 2004 is also now legal.

Conclusion: The Report ends by concluding intelligence collection under the "PSP" and now under FISA "following the PSP's transition to that authority" involved "unprecedented collection activities," and that the retention and use of such activities should be carefully monitored. (p. 38). This conclusion makes clear what was not made clear before -- that what has now been legalized is not limited to the rather modest activities publicly acknowledged as the TSP, but involved an gathering an "unprecedented" and dangerous amount of data that must be "carefully monitored."

To this I would add my own conclusion. Congress should never simply have allowed the Administration to set its own law. Instead, the Intelligence Committee should have conducted a thorough (and, if necessary, secret) investigation to determine what was being gathered, how useful it was, and to what extent it could be gathered from other sources. The main complaint was not that FISA warrants were too difficult to obtain, but that they were too slow and "cumbersome" and a more "agile" approach was needed. The possibility of streamlining the FISA process or allowing more days before a warrant was required should have been considered. And if the program was truly necessary but gathered a dangerous amount of information, appropriate safeguards should have been enacted. And here here we are now, stuck with whatever dangerous and originally illegal surveillance program the Bush Administration saw fit do, and no political will or interest in changing it.

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*And was a program so illegal that the upper echelon of the Bush Department of Justice, men like Ashcroft, Comey and Goldsmith -- no civil libertarians they -- nonetheless unanimously supported by both parties in the Congressional leadership? That actually seems more likely than I care to admit.