Congressman Kucinich's Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon's Defenders Finally Abandoned Him

One more gem for today from John W. Dean at Findlaw thanks to the sharp eyes and wit of our resident psychologist, Dr. Tricia! ____________________________________________

John W. Dean Friday, Jul. 25, 2008 Before I found myself wrestling with a nasty summer cold/flu bug, I had planned to travel to Washington to testify before the House Judiciary Committee, which is holding a hearing today on “Executive Power and Its Constitutional Limitations.” While this was not billed as an impeachment hearing, it was my understanding that I would follow the testimony of Congressman Dennis Kucinich of Ohio, who introduced a new impeachment resolution on July 10. The resolution states that President Bush “deceived Congress with fabricated threats of Iraq Weapons of Mass Destruction to fraudulently obtain support for an authorization for the use of force against Iraq and [he] used that fraudulently obtained authorization” to proceed to war in Iraq. Given the fact that Bush will be out of office in less than six months, it is not likely that the Kucinich resolution will receive the consideration it deserves. This is unfortunate. It has been clear to me since 2004, when I wrote Worse Than Watergate: The Secret Presidency of George W. Bush, in which I analyzed the basis for the very charge that Kucinich has now leveled, that Bush’s actions with regard to Congress – in essence, telling Congress and the American people a deadly lie involving the nation’s blood and treasure – constituted, without question, a “high crime” and impeachable behavior. It struck me that given my knowledge of the Nixon presidency, and because few in Congress today realize that Nixon was sent packing for a far lesser lie, I might focus my testimony on why Nixon was removed from office. In short, I might be able to add some perspective for the Kucinich resolution. In this column, I will also offer the perspective my experience with Nixon affords, as I consider the case for impeaching Bush. Congress Is Well-Aware Of Bush’s Imperial Presidency and Its Abuses of Power Based on conversations with members of the House and Senate, and countless public statements, there is no question that Congress understands that the Bush/Cheney presidency treats its members as if they were, and should be, a decidedly lesser branch. Nixon did the same, but with a difference. When Nixon was president, Congress reached a point where it was determined to end his abuses of presidential power. Yet pointing out this out would have been testifying to the obvious, and there is nothing I could say that would give those on Capitol Hill without spine the fortitude needed to take action. As with Nixon, Congress will have to stand up to the bully at the other end of Pennsylvania Avenue on its own – or never do so. Also, there is no shortage of witnesses who can discuss the abuses of power by Bush and Cheney, to create a record of how they have gone beyond established constitutional limitations. The examples are well-known: their excessive and unnecessary secrecy, their incessant stonewalling and refusal to provide information to Congress, the issuance of executive orders that have rewritten important laws (like Bush’s virtual repeal-by-executive-order of the Presidential Records Act of 1978), their politicization of the Department of Justice, their striking disregard for civil liberties, their exclusion of Congress from the necessary national security information when it votes on legislation like the FISA amendments (leaving Congress with no idea what the changes do or do not do), their deceiving Congress about the reasons for war in Iraq, their relentless expansion of purported executive prerogatives, their ongoing politicization of the federal judiciary, their violations of longstanding treaties in order to embrace a policy of torture, their utilization of the concocted theory of executive power known as “the unitary executive theory,” and their endless signing statements accompanying legislation and claiming the right to not enforce laws enacted and signed by the president. And this is to name merely a few of the matters with which the Congress is painfully familiar. Based on prior subcommittee hearings, the House Judiciary Committee knows well that the checks and balances of the Constitution do not work when the Executive Branch has made itself preeminent among its co-equals, and made a mockery of the separation of powers, as Bush and Cheney have done. Nor is there any real mystery on Capitol Hill about how this happened, for it is the clear result of the action – and inaction – of the conservative Republicans in Congress who assisted Presidents Reagan, Bush I, and Bush II with their increasingly radical expansion of presidential powers. Ironically conservatives once opposed an excessively powerful presidency but they now favor it because they believe they can more easily win the White House than control of Congress. Neither the federal courts nor voters have been inclined to rein in an outsized American presidency under the Republicans, because the federal judiciary is dominated by conservative Republicans who think an all-powerful president is good, and the average American voter does not have a clue about the cost he or she pays for an imperial presidency. So it has come down to the congressional Democrats (and a few moderate Republicans) to deal with the bloated presidential powers that have disrupted the Constitution’s balance. Again, the House Judiciary Committee would not need me to tell them how dire the situation has become, or how impotent the Congress has grown as Republicans game the system. While many Democrats on the committee, I am sure, would agree with my analysis, the ability to act hinges on Republicans: Only if Republicans understand the institutional damage they are tolerating is there any true chance of remedial action. Accordingly, I thought if I could merely make the point that conservatives, at one point, decided that they could not tolerate Nixon’s imperial behavior, and explain exactly why they came to that decision, it might clear the Republicans’ focus to deal with Bush and Cheney. Unfortunately, explaining this Nixon-versus-Congress history would be no easy task, for I discovered how ignorant current members of Congress are about Watergate when testifying before the Senate Judiciary Committee a few years ago. At that hearing, South Carolina Republican Senator Lindsay Graham made statements and asked questions about Watergate that were less informed that I get from today’s average high school student. But I did have a thought about how I might place Watergate in perspective for uninformed members of Congress, particularly Republicans; I thought it would be helpful to report a conversation I had with Nixon’s most articulate, knowledgeable, and persuasive defender – a conservative Republican about whom members of the committee may have heard. When Nixon’s Defenders Abandoned Him, and Why They Did So Only Democrat John Conyers of Michigan, who is now the chairman of the House Judiciary Committee, was involved in the 1974 proceedings to impeach Nixon. Chairman Conyers would recall well the member of the committee who had provided Nixon his most vigorous and effective defense: Charles E. Wiggins of California. Wiggins, recognized by his colleagues as one of the better lawyers on the committee, made a powerful case that a president should only be impeached if he had committed a crime, and at the time there was no evidence directly linking Nixon to criminal conduct. However, when the Supreme Court ruled against the president in United States v. Nixon and forced the release of the “smoking gun” tape, it revealed that Nixon had been involved in the Watergate cover-up from the outset. Wiggins, and most other conservatives, then reached the “painful conclusion” that Nixon had to go. In short, conservatives wanted nothing to do with a liar. This is not speculation on my part; rather, there is more to the story. I had known Chuck Wiggins from my days as Chief Minority Counsel of the House Judiciary Committee and although I had not seen him since my testimony as White House counsel in 1974 during the Nixon impeachment proceeding, we met again at Hastings Law School for a symposium in early February 2000 to examine Watergate 25 years after it all had happened. In 1984, President Reagan had appointed Wiggins to serve as a judge on the U.S. Court of Appeals for the Ninth Circuit. He was still seated as a senior judge, notwithstanding the fact he was almost totally blind. (Remarkably, Wiggins traveled alone, with no seeing-eye dog or walking stick. He told me that he could still make out images so that he did not walk into walls or people, and that he could still read with the assistance of an electronic magnifying device that enlarged books and papers, but that he would soon lose all sight.) As the Hastings conference was coming to an end, we discovered we were both on the same flight back to Los Angeles, and decided to travel together, so we could continue our conversation on the topics the conference raised. Wiggins’s View of Nixon’s Misconduct: Why the Lies Led Even Nixon’s Defenders to Change Their Minds When the flight back to Los Angeles was delayed, we found a quiet corner at the San Francisco terminal. Judge Wiggins told me that, during the Watergate era, he, along with a number of other conservative Republicans and Democrats, was preparing to mount a powerful defense of Nixon on the House floor, and that they had good reason to believe they had a serious shot a defeating the efforts to impeach him – until the Supreme Court ruled that Nixon had to release his tapes, and they found they had been lied to about Nixon’s true role. Wiggins believed that the lawyers representing Nixon had done a terrible job, and that Nixon should have claimed not merely “executive privilege,” but also taken the Fifth Amendment and invoked the State Secrets privilege as well to block access to his tapes. He had every right to do so, and had he done so, he would not have been forced from office. It would have been bad press, but he would have survived. (I agree with Judge Wiggins’s analysis.) Wiggins had no doubt that the June 23rd tape showed that Nixon had participated in conspiracy to obstruct justice regarding the Watergate investigation. However, Wiggins also thought there was an argument to be made that a president could not obstruct a federal investigation, since he himself had the theoretical power and authority to establish the parameters of that investigation. In addition, it could also be argued that Nixon’s actions on June 23, 1972 had been taken based on the advice of his counsel (who believed national security issues were involved) and of his former attorney general (who similarly believed national security issues might be at stake). As for the other charges in the articles of impeachment, Wiggins said he and the other Nixon defenders had planned to make fools of the Democrats by showing that everything that had been set forth in the articles had been done by Democratic presidents many times over. It was the classic defense: Two wrongs don’t make a right, but in law and politics they make a respectable precedent. But what neither Wiggins nor other Nixon apologists were prepared to defend was Nixon’s lying to Congress and the nation. After the smoking gun tape surfaced, none of these various defenses and strategies were relevant, because no member was prepared to defend Nixon’s obvious lies about Watergate. As today’s hearings continue, it will be interesting to see if any members of Congress are prepared to defend Bush and Cheney’s lies about taking the nation to war in Iraq. Disturbingly, it has been clear for some time that Bush and Cheney did indeed lie – and that their lies fit within a clear, extensive pattern of abuse of power. Yet condemnation from Congressional Republicans has yet to be heard. Sadly, it seems possible that today’s Republicans -- unlike Wiggins and the other Nixon apologists who changed their minds when confronted with proven presidential lies -- have no moral lines that they will draw. John W. Dean, a FindLaw columnist, is a former counsel to the president.

Suzan _________________________________________

Exposing Bush's historic abuse of power

Try as I may, I cannot think of a word to add to this article from Salon. It's all so shocking (can we really still be shocked?) that I'm not even going to try to place emphasis marks on the worst parts. I'm also running the print version so that you can read it all here if you have trouble logging onto Salon. ______________________________________________

Exposing Bush's historic abuse of power Salon has uncovered new evidence of post-9/11 spying on Americans. Obtained documents point to a potential investigation of the White House that could rival Watergate. By Tim Shorrock Jul. 23, 2008 The last several years have brought a parade of dark revelations about the George W. Bush administration, from the manipulation of intelligence to torture to extrajudicial spying inside the United States. But there are growing indications that these known abuses of power may only be the tip of the iceberg. Now, in the twilight of the Bush presidency, a movement is stirring in Washington for a sweeping new inquiry into White House malfeasance that would be modeled after the famous Church Committee congressional investigation of the 1970s. While reporting on domestic surveillance under Bush, Salon obtained a detailed memo proposing such an inquiry, and spoke with several sources involved in recent discussions around it on Capitol Hill. The memo was written by a former senior member of the original Church Committee; the discussions have included aides to top House Democrats, including Speaker Nancy Pelosi and Judiciary Committee chairman John Conyers, and until now have not been disclosed publicly. Salon has also uncovered further indications of far-reaching and possibly illegal surveillance conducted by the National Security Agency inside the United States under President Bush. That includes the alleged use of a top-secret, sophisticated database system for monitoring people considered to be a threat to national security. It also includes signs of the NSA's working closely with other U.S. government agencies to track financial transactions domestically as well as globally. The proposal for a Church Committee-style investigation emerged from talks between civil liberties advocates and aides to Democratic leaders in Congress, according to sources involved. (Pelosi's and Conyers' offices both declined to comment.) Looking forward to 2009, when both Congress and the White House may well be controlled by Democrats, the idea is to have Congress appoint an investigative body to discover the full extent of what the Bush White House did in the war on terror to undermine the Constitution and U.S. and international laws. The goal would be to implement government reforms aimed at preventing future abuses -- and perhaps to bring accountability for wrongdoing by Bush officials. "If we know this much about torture, rendition, secret prisons and warrantless wiretapping despite the administration's attempts to stonewall, then imagine what we don't know," says a senior Democratic congressional aide who is familiar with the proposal and has been involved in several high-profile congressional investigations. "You have to go back to the McCarthy era to find this level of abuse," says Barry Steinhardt, the director of the Program on Technology and Liberty for the American Civil Liberties Union. "Because the Bush administration has been so opaque, we don't know [the extent of] what laws have been violated." The parameters for an investigation were outlined in a seven-page memo, written after the former member of the Church Committee met for discussions with the ACLU, the Center for Democracy and Technology, Common Cause and other watchdog groups. Key issues to investigate, those involved say, would include the National Security Agency's domestic surveillance activities; the Central Intelligence Agency's use of extraordinary rendition and torture against terrorist suspects; and the U.S. government's extensive use of military assets -- including satellites, Pentagon intelligence agencies and U2 surveillance planes -- for a vast spying apparatus that could be used against the American people. Specifically, the ACLU and other groups want to know how the NSA's use of databases and data mining may have meshed with other domestic intelligence activities, such as the U.S. government's extensive use of no-fly lists and the Treasury Department's list of "specially designated global terrorists" to identify potential suspects. As of mid-July, says Steinhardt, the no-fly list includes more than 1 million records corresponding to more than 400,000 names. If those people really represent terrorist threats, he says, "our cities would be ablaze." A deeper investigation into intelligence abuses should focus on how these lists feed on each other, Steinhardt says, as well as the government's "inexorable trend towards treating everyone as a suspect." "It's not just the 'Terrorist Surveillance Program,'" agrees Gregory T. Nojeim from the Center for Democracy and Technology, referring to the Bush administration's misleading name for the NSA's warrantless wiretapping program. "We need a broad investigation on the way all the moving parts fit together. It seems like we're always looking at little chunks and missing the big picture." A prime area of inquiry for a sweeping new investigation would be the Bush administration's alleged use of a top-secret database to guide its domestic surveillance. Dating back to the 1980s and known to government insiders as "Main Core," the database reportedly collects and stores -- without warrants or court orders -- the names and detailed data of Americans considered to be threats to national security. According to several former U.S. government officials with extensive knowledge of intelligence operations, Main Core in its current incarnation apparently contains a vast amount of personal data on Americans, including NSA intercepts of bank and credit card transactions and the results of surveillance efforts by the FBI, the CIA and other agencies. One former intelligence official described Main Core as "an emergency internal security database system" designed for use by the military in the event of a national catastrophe, a suspension of the Constitution or the imposition of martial law. Its name, he says, is derived from the fact that it contains "copies of the 'main core' or essence of each item of intelligence information on Americans produced by the FBI and the other agencies of the U.S. intelligence community." Some of the former U.S. officials interviewed, although they have no direct knowledge of the issue, said they believe that Main Core may have been used by the NSA to determine who to spy on in the immediate aftermath of 9/11. Moreover, the NSA's use of the database, they say, may have triggered the now-famous March 2004 confrontation between the White House and the Justice Department that nearly led Attorney General John Ashcroft, FBI director William Mueller and other top Justice officials to resign en masse. The Justice Department officials who objected to the legal basis for the surveillance program -- former Deputy Attorney General James B. Comey and Jack Goldsmith, the former head of the Office of Legal Counsel -- testified before Congress last year about the 2004 showdown with the White House. Although they refused to discuss the highly classified details behind their concerns, the New York Times later reported that they were objecting to a program that "involved computer searches through massive electronic databases" containing "records of the phone calls and e-mail messages of millions of Americans." According to William Hamilton, a former NSA intelligence officer who left the agency in the 1970s, that description sounded a lot like Main Core, which he first heard about in detail in 1992. Hamilton, who is the president of Inslaw Inc., a computer services firm with many clients in government and the private sector, says there are strong indications that the Bush administration's domestic surveillance operations use Main Core. Hamilton's company Inslaw is widely respected in the law enforcement community for creating a program called the Prosecutors' Management Information System, or PROMIS. It keeps track of criminal investigations through a powerful search engine that can quickly access all stored data components of a case, from the name of the initial investigators to the telephone numbers of key suspects. PROMIS, also widely used in the insurance industry, can also sort through other databases fast, with results showing up almost instantly. "It operates just like Google," Hamilton told me in an interview in his Washington office in May. Since the late 1980s, Inslaw has been involved in a legal dispute over its claim that Justice Department officials in the Reagan administration appropriated the PROMIS software. Hamilton claims that Reagan officials gave PROMIS to the NSA and the CIA, which then adapted the software -- and its outstanding ability to search other databases -- to manage intelligence operations and track financial transactions. Over the years, Hamilton has employed prominent lawyers to pursue the case, including Elliot Richardson, the former attorney general and secretary of defense who died in 1999, and C. Boyden Gray, the former White House counsel to President George H.W. Bush. The dispute has never been settled. But based on the long-running case, Hamilton says he believes U.S. intelligence uses PROMIS as the primary software for searching the Main Core database. Hamilton was first told about the connection between PROMIS and Main Core in the spring of 1992 by a U.S. intelligence official, and again in 1995 by a former NSA official. In July 2001, Hamilton says, he discussed his case with retired Adm. Dan Murphy, a former military advisor to Elliot Richardson who later served under President George H.W. Bush as deputy director of the CIA. Murphy, who died shortly after his meeting with Hamilton, did not specifically mention Main Core. But he informed Hamilton that the NSA's use of PROMIS involved something "so seriously wrong that money alone cannot cure the problem," Hamilton told me. He added, "I believe in retrospect that Murphy was alluding to Main Core." Hamilton also provided copies of letters that Richardson and Gray sent to U.S. intelligence officials and the Justice Department on Inslaw's behalf alleging that the NSA and the CIA had appropriated PROMIS for intelligence use. Hamilton says James B. Comey's congressional testimony in May 2007, in which he described a hospitalized John Ashcroft's dramatic standoff with senior Bush officials Alberto Gonzales and Andrew Card, was another illuminating moment. "It was then that we [at Inslaw] started hearing again about the Main Core derivative of PROMIS for spying on Americans," he told me. Through a former senior Justice Department official with more than 25 years of government experience, Salon has learned of a high-level former national security official who reportedly has firsthand knowledge of the U.S. government's use of Main Core. The official worked as a senior intelligence analyst for a large domestic law enforcement agency inside the Bush White House. He would not agree to an interview. But according to the former Justice Department official, the former intelligence analyst told her that while stationed at the White House after the 9/11 attacks, one day he accidentally walked into a restricted room and came across a computer system that was logged on to what he recognized to be the Main Core database. When she mentioned the specific name of the top-secret system during their conversation, she recalled, "he turned white as a sheet." An article in Radar magazine in May, citing three unnamed former government officials, reported that "8 million Americans are now listed in Main Core as potentially suspect" and, in the event of a national emergency, "could be subject to everything from heightened surveillance and tracking to direct questioning and even detention." The alleged use of Main Core by the Bush administration for surveillance, if confirmed to be true, would indicate a much deeper level of secretive government intrusion into Americans' lives than has been previously known. With respect to civil liberties, says the ACLU's Steinhardt, it would be "pretty frightening stuff." The Inslaw case also points to what may be an extensive role played by the NSA in financial spying inside the United States. According to reports over the years in the U.S. and foreign press, Inslaw's PROMIS software was embedded surreptitiously in systems sold to foreign and global banks as a way to give the NSA secret "backdoor" access to the electronic flow of money around the world. In May, I interviewed Norman Bailey, a private financial consultant with years of government intelligence experience dating from the George W. Bush administration back to the Reagan administration. According to Bailey -- who from 2006 to 2007 headed a special unit within the Office of the Director of National Intelligence focused on financial intelligence on Cuba and Venezuela -- the NSA has been using its vast powers with signals intelligence to track financial transactions around the world since the early 1980s. From 1982 to 1984, Bailey ran a top-secret program for President Reagan's National Security Council, called "Follow the Money," that used NSA signals intelligence to track loans from Western banks to the Soviet Union and its allies. PROMIS, he told me, was "the principal software element" used by the NSA and the Treasury Department then in their electronic surveillance programs tracking financial flows to the Soviet bloc, organized crime and terrorist groups. His admission is the first public acknowledgement by a former U.S. intelligence official that the NSA used the PROMIS software. According to Bailey, the Reagan program marked a significant shift in resources from human spying to electronic surveillance, as a way to track money flows to suspected criminals and American enemies. "That was the beginning of the whole process," he said. After 9/11, this capability was instantly seen within the U.S. government as a critical tool in the war on terror -- and apparently was deployed by the Bush administration inside the United States, in cases involving alleged terrorist supporters. One such case was that of the Al-Haramain Islamic Foundation in Oregon, which was accused of having terrorist ties after the NSA, at the request of the Treasury Department, eavesdropped on the phone calls of Al-Haramain officials and their American lawyers. The charges against Al-Haramain were based primarily on secret evidence that the Bush administration refused to disclose in legal proceedings; Al-Haramain's lawyers argued in a lawsuit that was a violation of the defendants' due process rights. According to Bailey, the NSA also likely would have used its technological capabilities to track the charity's financial activity. "The vast majority of financial movements of any significance take place electronically, so intercepts have become an extremely important element" in intelligence, he explained. "If the government suspects that a particular Muslim charitable organization is engaged in collecting funds to funnel to terrorists, the NSA would be asked to follow the money going into and out of the bank accounts of that charity." (The now-defunct Al-Haramain Foundation, although affiliated with a Saudi Arabian-based global charity, was founded and based in Ashland, Ore.) The use of a powerful database and extensive watch lists, Bailey said, would make the NSA's job much easier. "The biggest problems with intercepts, quite frankly, is that the volumes of data, daily or even by the hour, are gigantic," he said. "Unless you have a very precise idea of what it is you're looking for, the NSA people or their counterparts [overseas] will just throw up their hands and say 'forget it.'" Regarding domestic surveillance, Bailey said there's a "whole gray area where the initiation of the transaction was in the United States and the final destination was outside, or vice versa. That's something for the lawyers to figure out." Bailey's information on the evolution of the Reagan intelligence program appears to corroborate and clarify an article published in March in the Wall Street Journal, which reported that the NSA was conducting domestic surveillance using "an ad-hoc collection of so-called 'black programs' whose existence is undisclosed." Some of these programs began "years before the 9/11 attacks but have since been given greater reach." Among them, the article said, are a joint NSA-Treasury database on financial transactions that dates back "about 15 years" to 1993. That's not quite right, Bailey clarified: "It started in the early '80s, at least 10 years before." Main Core may be the contemporary incarnation of a government watch list system that was part of a highly classified "Continuity of Government" program created by the Reagan administration to keep the U.S. government functioning in the event of a nuclear attack. Under a 1982 presidential directive, the outbreak of war could trigger the proclamation of martial law nationwide, giving the military the authority to use its domestic database to round up citizens and residents considered to be threats to national security. The emergency measures for domestic security were to be carried out by the Federal Emergency Management Agency (FEMA) and the Army. In the late 1980s, reports about a domestic database linked to FEMA and the Continuity of Government program began to appear in the press. For example, in 1986 the Austin American-Statesman uncovered evidence of a large database that authorities were proposing to use to intern Latino dissidents and refugees during a national emergency that might follow a potential U.S. invasion of Nicaragua. During the Iran-Contra congressional hearings in 1987, questions to Reagan aide Oliver North about the database were ruled out of order by the committee chairman, Democratic Sen. Daniel Inouye, because of the "highly sensitive and classified" nature of FEMA's domestic security operations. In September 2001, according to "The Rise of the Vulcans," a 2004 book on Bush's war cabinet by James Mann, a contemporary version of the Continuity of Government program was put into play in the hours after the 9/11 terrorist attacks, when Vice President Cheney and senior members of Congress were dispersed to "undisclosed locations" to maintain government functions. It was during this emergency period, Hamilton and other former government officials believe, that President Bush may have authorized the NSA to begin actively using the Main Core database for domestic surveillance. One indicator they cite is a statement by Bush in December 2005, after the New York Times had revealed the NSA's warrantless wiretapping, in which he made a rare reference to the emergency program: The Justice Department's legal reviews of the NSA activity, Bush said, were based on "fresh intelligence assessment of terrorist threats to the continuity of our government." It is noteworthy that two key players on Bush's national security team, Cheney and his chief of staff, David Addington, have been involved in the Continuity of Government program since its inception. Along with Donald Rumsfeld, Bush's first secretary of defense, both men took part in simulated drills for the program during the 1980s and early 1990s. Addington's role was disclosed in "The Dark Side," a book published this month about the Bush administration's war on terror by New Yorker reporter Jane Mayer. In the book, Mayer calls Addington "the father of the [NSA] eavesdropping program," and reports that he was the key figure involved in the 2004 dispute between the White House and the Justice Department over the legality of the program. That would seem to make him a prime witness for a broader investigation. Getting a full picture on Bush's intelligence programs, however, will almost certainly require any sweeping new investigation to have a scope that would inoculate it against charges of partisanship. During one recent discussion on Capitol Hill, according to a participant, a senior aide to Speaker Pelosi was asked for Pelosi's views on a proposal to expand the investigation to past administrations, including those of Bill Clinton and George H.W. Bush. "The question was, how far back in time would we have to go to make this credible?" the participant in the meeting recalled. That question was answered in the seven-page memo. "The rise of the 'surveillance state' driven by new technologies and the demands of counter-terrorism did not begin with this Administration," the author wrote. Even though he acknowledged in interviews with Salon that the scope of abuse under George W. Bush would likely be an order of magnitude greater than under preceding presidents, he recommended in the memo that any new investigation follow the precedent of the Church Committee and investigate the origins of Bush's programs, going as far back as the Reagan administration. The proposal has emerged in a political climate reminiscent of the Watergate era. The Church Committee was formed in 1975 in the wake of media reports about illegal spying against American antiwar activists and civil rights leaders, CIA assassination squads, and other dubious activities under Nixon and his predecessors. Chaired by Sen. Frank Church of Idaho, the committee interviewed more than 800 officials and held 21 public hearings. As a result of its work, Congress in 1978 passed the Foreign Intelligence Surveillance Act, which required warrants and court supervision for domestic wiretaps, and created intelligence oversight committees in the House and Senate. So far, no lawmaker has openly endorsed a proposal for a new Church Committee-style investigation. A spokesman for Pelosi declined to say whether Pelosi herself would be in favor of a broader probe into U.S. intelligence. On the Senate side, the most logical supporters for a broader probe would be Democratic senators such as Patrick Leahy of Vermont and Russ Feingold of Wisconsin, who led the failed fight against the recent Bush-backed changes to FISA. (Both Feingold and Leahy's offices declined to comment on a broader intelligence inquiry.) The Democrats' reticence on such action ultimately may be rooted in congressional complicity with the Bush administration's intelligence policies. Many of the war on terror programs, including the NSA's warrantless surveillance and the use of "enhanced interrogation techniques," were cleared with key congressional Democrats, including Pelosi, Senate Intelligence Committee chairman Rockefeller, and former House Intelligence chairwoman Jane Harman, among others. The discussions about a broad investigation were jump-started among civil liberties advocates this spring, when it became clear that the Democrats didn't have the votes to oppose the Bush-backed bill updating FISA. The new legislation could prevent the full story of the NSA surveillance programs from ever being uncovered; it included retroactive immunity for telecommunications companies that may have violated FISA by collaborating with the NSA on warrantless wiretapping. Opponents of Bush's policies were further angered when Democratic leaders stripped from their competing FISA bill a provision that would have established a national commission to investigate post-9/11 surveillance programs. The next president obviously would play a key role in any decision to investigate intelligence abuses. Sen. John McCain, the Republican candidate, is running as a champion of Bush's national security policies and would be unlikely to embrace an investigation that would, foremost, embarrass his own party. (Randy Scheunemann, McCain's spokesman on national security, declined to comment.) Some see a brighter prospect in Barack Obama, should he be elected. The plus with Obama, says the former Church Committee staffer, is that as a proponent of open government, he could order the executive branch to be more cooperative with Congress, rolling back the obsessive secrecy and stonewalling of the Bush White House. That could open the door to greater congressional scrutiny and oversight of the intelligence community, since the legislative branch lacked any real teeth under Bush. (Obama's spokesman on national security, Ben Rhodes, did not reply to telephone calls and e-mails seeking comment.) But even that may be a lofty hope. "It may be the last thing a new president would want to do," said a participant in the ongoing discussions. Unfortunately, he said, "some people see the Church Committee ideas as a substitute for prosecutions that should already have happened."

Suzan _____________________________________