Holder: Warrantless Surveillance was “Unwise” Rather than “Illegal”

holderericAttorney General Eric Holder left little question in anyone’s mind this week that the Obama Administration will not allow a prosecution of unlawful surveillance during the Bush Administration. As with the torture program, the Administration has been avoiding questions about its failure to prosecute the illegal surveillance program. Now, Holder has refused to call the program “illegal” and would only refer to it as “unwise.” I intent to use this as my main defense in my next criminal case: my client’s robbery of a bank was merely “unwise” and a lack of wisdom does not justify prosecution.

Sen. Russ Feingold (D-Wis.) pushed Holder on the violation of the Foreign Intelligence Surveillance Act (FISA):

Feingold: Is there any doubt in your mind that the warrantless wiretapping program was illegal?

Holder: As it was put together at the time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.

Feingold: I asked if it was illegal, not unwise.

Holder: I thought actions the administration had taken were inconsistent with the dictates of FISA. And as a result I thought the policy was an unwise one. The concerns I addressed then have been remedied by Congress.

Feingold: Was it illegal?

Holder: I said it was inconsistent with the dictates of FISA.

Feingold: That sounds awfully mild compared to a very clear statement and very clear principle here … Many people like me believe that if the statute is that explicit then it is unconstitutional for the president and illegal for the president to override the express will of the Congress.

Holder: I think what I’m saying now is consistent with what I’m saying in the speech.

The Administration’s use of such doublespeak obviously raises recent memories of Bush Attorneys General Gonzales and Mukasey. It also confirms statements from Bush officials and Senators that, while Obama was running on cracking down on the surveillance and torture programs, he had assured them privately that he would not allowed any prosecutions.

If Gonzales had given Holder’s statement, the blogs would be on fire. Yet, many liberals appear to be treating Obama as conservatives treated Bush — with blind loyalty.

32 thoughts on “Holder: Warrantless Surveillance was “Unwise” Rather than “Illegal””

  1. All people are born alike – except Republicans and Democrats.

    – Groucho Marx

  2. Jill,

    So, the Neo Cons are in control and we should seriously consider an online Constitutional Convention for starters and get serious. Sacrifices will be made. But if we stand idly by without a whimper, it’s gone. All of it. I have a rule and will share it with you:

    If the order breaks the law or is immoral, disobey it, so General Pace said.


    Time to begin talking impeachment even though any impeachment is off the table for our current government. It’s time to compel Mr. Obama to make a choice and cease the slick talk.

    Pictures please, and put an apple in it, Lieberman. This is our country, not the Likud’s.

  3. For What It’s Worth (Stop Hey, What’s that Sound)
    The Buffalo Springfield
    2/18/67 Charted #7 11 weeks

    There’s something happening here
    What it is ain’t exactly clear
    There’s a man with a gun over there
    Telling me I got to beware

    I think it’s time we stop, children, what’s that sound
    Everybody look what’s going down

    There’s battle lines being drawn
    Nobody’s right if everybody’s wrong
    Young people speaking their minds
    Getting so much resistance from behind

    I think it’s time we stop, hey, what’s that sound
    Everybody look what’s going down

    What a field-day for the heat
    A thousand people in the street
    Singing songs and carrying signs
    Mostly say, hooray for our side

    It’s time we stop, hey, what’s that sound
    Everybody look what’s going down

    Paranoia strikes deep
    Into your life it will creep
    It starts when you’re always afraid
    You step out of line, the man come and take you away

    We better stop, hey, what’s that sound
    Everybody look what’s going down
    Stop, hey, what’s that sound
    Everybody look what’s going down
    Stop, now, what’s that sound
    Everybody look what’s going down
    Stop, children, what’s that sound
    Everybody look what’s going down

    I sure there is a YouTube video…

  4. Here’s more evidence that Obama wishes to suppress evidence of war crimes and has no intention of prosecuting anyone:

    “In a move that didn’t receive much attention, the Senate on Wednesday passed by unanimous consent the Graham-Lieberman bill, which seeks to make it illegal to make public any images of US prisoner abuse and torture from the Bush era. Specifically, the bill bans the release of images “taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.” The Obama White House supports this outrageous legislation whose sole purpose is to make it illegal to reveal the truth about US torture.” (jeremy scahill)


  5. New Defense in Criminal Law.

    Your Honor what my client did was Unwise not illegal. That is the current policy so you cannot convict my client.

    Court to the Attorney: Do you agree that you client took money from the Washing Mutual by the use of a weapon.

    Defense Attorney: No your honor, my client was just liberating the newly printed federal reserve notes. He was just exchanging the opportunity for all of the people whom wished to observe his nice shiny new 9MM Glock. You see he has just purchased it and was very proud. He was just amazed that all of these nice people just started giving him all sorts of items of value including bundles of money. And my client not being one to offend anyone gladly accepted.

    The Court: Do you think that your client is guilty of any crimes.

    Defense: No Your honor as the Government has already stated in many other areas It was just unwise for my client to bring in his gun.

    Whats the difference. If you really think about it.

  6. Jill,
    “I realize this sounds bizarre to many people but I believe the US is in real danger of going totalitarian.”

    (Pulling out hair and rending garments for emphasis) ALL of the mechanisims are in place to do exactly that! We are there in major part IMO.

  7. lottakatz,

    Thanks for those links. I didn’t read them yet but I will. You see how the Chinese and Iranian govt. use control over the internet to control their population. Google is working directly with our govt. on a project that could easily accomplish this same end. I realize this sounds bizarre to many people but I believe the US is in real danger of going totalitarian. I don’t take it lightly that we do have unchecked surveillance on our population. We have seen some open use of that information during the Democratic and Republican conventions where intelligence was gathered against peaceful protesters and used to arrest and otherwise itimidate the living hell out of them. We have seen quite a bit of that illegal intelligence gathering used against Muslim groups. So far the govt. has chosen its targets for open force carefully– going after outlying groups such as Muslims and the peace/economic justice/democracy folks on the left. These are useful test cases and they send a message.

    Failure to prosecute war criminals and those who engage in domestic spying is a disaster as others have laid out. In fact there is very good evidence that Obama engages in the same actions as his predecessors. We are tolearting this behavior and it is in part, that tolerance that will bring this nation down.

  8. This might seem like a stupid question (or incredibly naive, at least), but I have to ask:

    Couldn’t someone – preferably someone who was a victim of this “unwise” surveillance – sue the Justice Department on the grounds that they are being denied due process?

    If the government can collude with communications companies to violate the Constitutional rights of US citizens and then turn around and offer immunity to their co-conspirators, our Constitution is pretty much meaningless.

  9. lthuedk:
    “How about a simple, no prosecutions = no second term approach? ”

    I’m not having any problem with that thought.

  10. How about a simple, no prosecutions = no second term approach?

    I thought no one is above the law. Isn’t refusal to prosecute in the presence of overwhelming evidence of crime(s) an act of criminal negligence? Isn’t it the duty as an officer of the court to act lawfully and responsibly when witnessing crime? Does the Constitution not guarantee the right of legal redress to all citizens?

    Obama’s lofty plans should include full prosecution of Bushists for every act of subversion, torture, murder and theft they committed. But not knowing how Obama is playing this for the 2010-12 vote and how much the plan will impact the timing of our expressed rights tends to be very troubling at minimum. The guard remains up. And that makes a huge assumption the Administration will actually act to protect us from subversives. It seems we’re in a game but not allowed to sit at the table.

    Our country just barely survived occupation by dictatorship and it would be useful for the Administration to realize the People’s well-earned distrust goes deep. President Obama should try using the law as both defender and teacher before Progressives turn on perceived betrayal.

    Negligence should not be tolerated when it comes from the top. Why do I feel as if a very wrong precedent is about to be established? That does not reassure those of us who all heard the same speeches, felt the hope, and dutifully voted for Obama. Are we to be left with a permanent mark of amorality on the People to bear for all time?


  11. Holder: “As it was put together at the time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.”

    We can not underestimate how willing the Congress is to assist even the most corrupt and unconstitutional of acts by a Chief Executive. Obama Administration has devolved into Bush-Lite and like BIL I wonder just what the outcome will be if people are pushed to the limit of tolerance for a government that has no regard for their wishes or well-being. Every day this Administration weds itself more closely with the authoritarian future Bush constructed.

    I’m thinking the likelihood of a full implementation of the tools the government has access too will occur if people DON’T start pushing back. I fear though that this country’s citizen’s no longer have the integrity or self respect for the kind of push-back that’s needed and happening now in Iran.

    The NSA is not only charged with Cyber-surveillance but soon through the establishment of a Cyber Command it will be totally in control of cyber-security for the nations defense and have sweeping powers:


    From the Article:
    “The establishment of a Cyber Command first became a source of controversy when it was announced in April. One of the most chilling assessments was in an article at GlobalResearch, which spoke of “billions of dollars already spent on a score of top secret initiatives, included those hidden within Pentagon Special Access (SAP) or black programs” and warned direly that “NSA has positioned itself to seize near total control over the country’s electronic infrastructure, thereby exerting an intolerable influence–and chilling effect–over the nation’s political life.”

    Notice the Pentagon involvement? It gets real interesting from there. Rumsfeld set up a Pentagon SAP to recruit a mobile force of troops and interrogators to deal with high value Al Qaeda targets:

    Seymore Hersh Article 2004, long but worth the re-read

    From the article:
    “Rumsfeld’s goal was to get a capability in place to take on a high-value target—a standup group to hit quickly,” a former high-level intelligence official told me. “He got all the agencies together—the C.I.A. and the N.S.A.—to get pre-approval in place. Just say the code word and go.” The operation had across-the-board approval from Rumsfeld and from Condoleezza Rice, the national-security adviser. President Bush was informed of the existence of the program, the former intelligence official said.
    … They carried out instant interrogations—using force if necessary—at secret C.I.A. detention centers scattered around the world. ”

    These are the folks deployed to the CIA black sites that did the actual interrogations and their methods migrated to Abu Garieb. The program was set up almost immediately after 9-11, and as a SAP under Pentagon control it, like other SAP’s (under Pentagon OR NSA control) was never fully briefed to Congress.

    In any event these two articles demonstrate; culpability at the highest level for illegal wiretapping and torture; joint responsibility by NSA, CIA and the Pentagon for same and the capability for further action intact and expanded under a cyber security mandate and new powers

    I think one of the things being protected by the Administrations refusal (along with Congress’) to investigate torture is that the CIA and low level grunts have taken the blame for a torture program set up by Rumsfeld with the help of the NSA and CIA. The Pentagon has come out of the torture imbroglio heretofore relatively unscathed and NSA hasn’t even been mentioned. Also, since the funding is black the Pentagon, CIA nor NSA want that looked into. Ghod only knows what sins are in that budget and at what cost to the taxpayer.

    Remember the skids of 100$ bills sent to Iraq? Like that’s the first time that ever happened. The black budget could finance universal, single payer health care in perpetuity.

  12. M72,

    I have never read the full ‘Alice in Wonderland’ and I have only read snippets from it as quotes and viewed a few video clips of the full movie.

    However, appearances are that it is a must-read to understand today’s world, if that is even possible. ‘Song of the South’ was my philosophic guide up until recent revelations by Obama/Holder et al.

  13. Mr. Holder continues to demonstrate a rather fluid understanding of the concept of “illegality.” To the extent that his views reflect the opinion of Pres. Obama, the law is in trouble.

  14. “If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?”

    –Alice (“Alice in Wonderland”)

    Language is fun sometimes not for what the speaker says but for what he refuses to say even though the question demands the answer. We have all we need to know about Holder–as man and public servant lawyer–by virtue of his “non-speak,” and by extension his boss. The only saving grace may be that the right hand has no idea what the left hand is doing, evidenced by that through-the-looking-glass Presidential press conference where Obama derided the so-called “Defense of Marriage Act,” as discriminatory and hence unconstitutional all the while as the DOJ was defending it in Federal Court.

    See why I consider Lewis Carroll the finest philosopher of all time.

  15. Glenn Greenwald gives this an examination as well. Here is a clip from an article at the NYTimes on the current state of “intelligence” collection, aka, domestic spying on our citizens:

    “June 16, 2009 – New York Times:

    The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said. . .

    Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation. . .”

    (from Glenn Greenwald today)

  16. You really can’t read this another way. Obama intends to hold Bush/Cheney harmless. You know, even staunch Republicans under Bush did treaten to resign over the FISA violations. We still don’t know the extent of the “unwise’ surveillance against the American public, something we have a right to know.

    I also believe Obama wants no part of this investigation, because, as in the case of war crimes, he’s breaking the law. To expose Bush is to expose himself.

    Our informatiion is routed to several NSA centers with help from Microsoft and Google. Much of the raw data is sent for anaylsis to Israel. Don’t forget that our govt. purchases private company data, at an excellent profit to these companies, on just about everything each of us does. (see James Bamford: “The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America” Here’s an interview laying out some important aspects of the program from 08 on Democracy Now.


    So I am wondering why people aren’t up in arms. This level of intrusion into the lives of others surpassess what the Stasi were capable of. It has nothing to do with good law enforement, in fact it is counterproductive to that aim. It is an excellent tool for the state control over dissent. I think this president is more than willing to bring down the full faith and credit of the US govt. on people who oppose his unjust lust for/exercise of power.

    Holder is no idiot. He’s choosing his words carefully. He’s right there in the mud with the many Bush officials who could never say if waterboarding or any other outrage was illegal. We need to look out, pay attention and stop this now.

  17. Thank you for once again showing that the Constitution is ball the citizen batter should be watching, not the partisan freak show going on the stands.

    As for Holder, well, that about sums up our options come election time, don’t they? We the People should now refocus upon removing both parties from the system as they have both demonstrated a blatant disregard for the both the ideals and the laws this country was founded upon. You want real change now that we’ve given both of the teams of narcissistic half-wits a chance at the helm? Start working now to get third party and independent candidates into every level of election from this day forward. Candidates who think the Constitution and our civil and human rights are more important than sucking at the K Street corporate graft teet. Or we can let those short sighted toads continue to degrade the system and attack OUR rights and laws.

    But make no mistake, we are eventually going to run out of peaceful options at this rate. Then people will start disappearing. People who disagree with fascism and authoritarianism. People who question too much. People who want freedom. People like you and me. And at some point, the camps will appear – camps ostensibly to protect us from “domestic terrorists”. Are you ready for that? Are you ready to go visit your activist cousin through the concertina wire? Then just keep supporting and electing candidates from either the totally corrupt and ineffective Republican or Democratic parties. Neither organization is guaranteed a right to exist by the Constitution and neither is guaranteed a place in local and by extension, national, politics. WE keep electing these self-interested myopic thieves because they have worked hard to keep any other options off the table other than the lesser of two evils. Now it’s time to start undoing that and open the electoral systems. It may be one of the last best hopes we have for correcting America’s course before bad things start to happen.

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