Bush

In rejecting a key element of a legal challenge to the government’s warrantless wiretapping program, federal appellate judges on Friday demonstrated once again the willingness of U.S. courts to give the Bush administration considerable latitude in handling the war on terror.

The U.S. 9th Circuit Court of Appeals in San Francisco, by a 3-0 vote, barred an Islamic charity from using a confidential government document to prove that it had been illegally spied upon, agreeing with the administration that disclosure would reveal “state secrets.”

The lawsuit, filed by Al-Haramain Islamic Foundation and two of its attorneys, challenged the National Security Agency’s spying endeavor, the Terrorist Surveillance Program, launched after the Sept. 11, 2001, terrorist attacks. The U.N. Security Council has declared that Al-Haramain, which operates in more than 50 countries, belongs to or is associated with Al Qaeda.

The suit was one of 50 legal challenges brought across the country after the program’s existence was revealed in the New York Times.

Other courts have shown similar deference to the Bush administration on the state secrets privilege, which permits the government to bar disclosure in court of information if “there is a reasonable danger” it would affect national security.

But the ruling in this case was particularly striking because it came from a panel of three liberal jurists, all appointed by Democratic presidents.

Moreover, the charity, unlike other plaintiffs, says it has evidence of surveillance — a call log from the National Security Agency that the government inadvertently turned over in another proceeding.

In the ruling, Judge M. Margaret McKeown wrote that the judges accepted “the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena.”

Erwin Chemerinsky, a liberal constitutional law professor at Duke University law school, said the court showed “how much deference even a liberal panel of judges is willing to give the executive branch in situations like this, and I find that very troubling.”

Doug Kmiec, a conservative constitutional law professor at Pepperdine law school, said “the opinion is consistent with” a ruling by the federal appeals court in Cincinnati earlier this year striking down a challenge to the surveillance filed by the American Civil Liberties Union.

He said the dual rulings indicated that “federal courts recognize that the essential aspects of the Terrorist Surveillance Program both remain secret and are important to preserve as such.”

The court’s ruling was not an absolute victory for the government. McKeown rejected the Justice Department’s argument that “the very subject matter of the litigation is a state secret.”

That finding could prove important in numerous other cases in which the government contends that even considering legal challenges to warrantless wiretapping would endanger national security.

In addition, the 9th Circuit panel sent the case back to a lower court to consider another issue: whether the Foreign Intelligence Surveillance Act, which requires approval by a special court for domestic surveillance, preempts the state secrets privilege. McKeown said that issue “remains central to Al-Haramain’s ability to proceed with this lawsuit.”

Georgetown University constitutional law professor David Cole said he thought Friday’s ruling showed partial victories for both sides.

Indeed, lawyers for the government and for the charity said they were happy with the outcome.

“The 9th Circuit upheld the government’s position that release of this information would undermine the government’s intelligence capabilities and compromise national security,” the Justice Department said.

Oakland attorney Jon Eisenberg, who argued for Al-Haramain before the 9th Circuit, said: “The government wants this case dead and gone. It is not. We are alive and kicking.”

Eisenberg expressed optimism that his client would prevail under the Foreign Intelligence Surveillance Act, a statute enacted in the aftermath of revelations of illegal spying on civil rights and antiwar activists in the 1960s and ‘70s.

“That provision would be meaningless if the government could evade any such lawsuit merely by evoking the state secrets privilege,” Eisenberg said.

In support of her opinion, McKeown detailed statements by government officials — including President Bush, then-Atty. Gen. Alberto Gonzales and Gen. General Michael V. Hayden, principal deputy director for national intelligence — acknowledging the existence of the Terrorist Surveillance Program and extolling its importance.

“In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of this litigation is a state secret,” wrote McKeown, an appointee of President Clinton. “Unlike a truly secret or ‘black box’ program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP.”

Nonetheless, after privately reviewing the secret document, McKeown said she and her colleagues Michael Daly Hawkins, another Clinton appointee, and Harry Pregerson, a Carter appointee, agreed it was protected by the state secrets privilege.

“Detailed statements underscore that disclosure of information concerning the Sealed Document and the means, sources and methods of intelligence gathering in this context of this case would undermine the government’s intelligence capabilities and compromise national security,” she said.

The state secrets privilege was first utilized successfully by the government in a case shortly after the Civil War.

The leading case in the area, U.S. vs. Reynolds, was issued by the Supreme Court in 1953 to block a lawsuit after the crash of a B-29 bomber.

Three widows of crewmen sued and sought the official accident reports. The Air Force said the reports could not be revealed because the bomber was on a secret test mission.

(When the reports were declassified in 2000, they revealed that the aircraft was in poor condition, evidence that might have helped the widows’ suit.)

The Bush administration has evoked the state secrets privilege numerous times in recent years. In most instances, courts have accepted the word of government lawyers, often with a fairly cursory review, according to George Washington University law professor Jonathan Turley, who, like Cole, has challenged the privilege in court.

McKeown took pains to say that the 9th Circuit had carefully scrutinized the government’s assertions.

She said the judges had taken “very seriously our obligation to review the documents with a very careful, indeed a skeptical eye, and not to accept at face value the government’s claim or justification of privilege.”

But she said the panel could go no further than what already has been publicly disclosed that “the Sealed Document has something to do with intelligence activities.”

When the court heard the Al-Haramain case in August, it also entertained arguments in a related case, Hepting vs. AT&T; Corp. In that case, lawyers representing millions of AT&T; customers are seeking damages from the telecommunications giant for allegedly sharing their private records with the National Security Agency as part of the surveillance program.

On Friday, the 9th Circuit panel issued a brief order saying that the AT&T; case had been severed from the Al-Haramain matter. A decision is expected in the next several months, although there is no deadline.

—

henry.weinstein@latimes.com

PHILADELPHIA — George W. Bush and his campaign have enjoyed remarkable success synchronizing the message from everyone at the Republican National Convention this week.

Except his parents.

After maintaining a low profile all year, former President Bush and former First Lady Barbara Bush have been drawn into a pointed war of words with President Clinton–the man who ousted the elder Bush from the White House in 1992.

The confrontation, which escalated when Barbara Bush criticized Vice President Al Gore on Wednesday, worries many Republicans, who fear it will both distract from the convention’s velvet-glove feel and reinforce questions about whether the younger Bush would be this close to the presidency if his name was Smith.

“It plays into [the Democrats’] hands,” complained one Bush campaign insider about the feud. “It’s what they want: a distraction from a perfect convention.”

Indeed, Democrats have welcomed the controversy. “It reminds everybody . . . that Bush thinks the presidency is an office you can inherit,” said Democratic National Committee Chairman Joe Andrew on Wednesday.

Karl Rove, Bush’s chief strategist, rejected the notion that the Bush family-Clinton tiff was interfering with the convention’s carefully scripted message of moderation and civility. “I think what’s more important . . . is that the vice president is such a weak candidate that he’s forced to rely upon a constant barrage of attacks launched by President Clinton,” Rove said. “I think people see it as inappropriate and it paints a picture of Al Gore as a weak candidate and a weak leader.”

She’s Skeptical Gore Can Restore Respect

Barbara Bush added fuel to the flap when, with her husband Wednesday on ABC-TV’s “Good Morning America,” she first inferred that Clinton had brought disrespect to the presidency, then said she was skeptical Gore could return respect to the office. “It would be very difficult, I think, with some of the things he’s done,” she said.

She did not elaborate.

The multi-generational battle–which before Barbara Bush’s comments had seen Clinton criticize the younger Bush and both the younger and elder Bush criticize Clinton–underscores the unique circumstance of this campaign. Only once before in American history has a president’s son also won the office. And that man, John Quincy Adams, ran 24 years after the term of his father, John Adams, had ended, long enough for the passions of his presidency to cool.

In contrast, the younger Bush is running at a time when the wounds of his father’s defeat are still open, especially among Republican activists who viewed Clinton as morally unfit for the office even before the Monica S. Lewinsky scandal.

But in both public and private, George W. Bush has always emphatically rejected suggestions that he has sought the White House to avenge his father’s defeat. And for most of the campaign, the younger Bush has been extremely sensitive to avoid the impression his presidency would amount to a restoration of his father’s.

Bush, for instance, hasn’t campaigned with his father since the former president referred to him at a New Hampshire rally as “this boy . . . of ours.”

Media Stir Debate on Father’s Influence

That arms-length relationship began to break down last week, when Bush selected Dick Cheney as his running mate. As Defense secretary, Cheney had been an architect of the Persian Gulf War that marked the greatest triumph of the elder Bush’s presidency. And President Bush’s apparent backstage support for Cheney inspired a new wave of media discussion about his influence on his son’s campaign.

Clinton stirred the pot Friday at a Democratic fund-raiser in Rhode Island, where he suggested that Bush was running for president on minimal qualifications. Speaking as if he were Bush, Clinton said derisively, “I mean, how bad could I be? I’ve been governor of Texas; my daddy was president; I own a baseball team.”

Democratic insiders say Clinton may have turned on Bush in response to Bush’s own barbed comments that day on his inaugural campaign swing with Cheney. Bush described his running mate as “a solid man . . . a man who understands what the definition of ‘is’ is.” That was a reference to an often-ridiculed answer from Clinton during his 1998 grand jury testimony in the Lewinsky scandal.

Whatever the cause, Clinton’s comments drew sharp retorts from both the younger and elder Bush. The former president told NBC earlier this week: “I’ll tell you what I’m going to do. I’m going to wait a month. And then, you give a call. . . . And if he continues that, then I’m going to tell the nation what I think about him as a human being and a person.”

Since then, the elder Bush has studiously avoided further comments; he told Fox News on Wednesday that his son “probably wished I kept my mouth shut, but I haven’t heard from him yet.”

Some Bush campaign officials say the former president’s high personal popularity–recent polls found about two-thirds of Americans now have a favorable opinion of him–means there’s little risk in his increased visibility over the last few weeks. In any case, one senior Bush aide said that after this week, the parents will quickly recede into the background again.

Pity the person with a hard act to follow, particularly if it’s his own. George W. Bush is such a person. For three months, he has shone as the take-charge leader of a powerful nation reeling from an unexpected blow. A quiet sense of triumph now pervades Washington’s inner circles.

But here’s the hard-act-to-follow part, and the irony of President Bush’s situation: In declaring a war on terrorism and the states that harbor terrorists, Bush’s policy of rooting out terrorism wherever it thrives plunks his administration smack into the middle of the world’s trouble spots.

Merely to list the breeding grounds for terrorism is to suggest the scope of the challenge: Sudan, Somalia, Colombia, Iraq, Indonesia, the Philippines, Iran, Pakistan, Chechnya and, yes, Saudi Arabia. Here is the underbelly of globalization: countries rendered unstable by the absence of power or its autocratic concentration

The speed with which success has come to the American campaign in Afghanistan exacerbates the problem. Had the conflict there dragged on, people might have forgotten Bush’s pledge to root out terrorism. Today, still fresh in mind, it attracts world attention.

The havens of terrorists are either dysfunctional countries in need of nation-building or autocratic regimes sowing the seeds of despair that sprout fanatics.

Turning these retrograde states into open, self-sustaining communities will require a generosity of spirit and patience for study that Bush’s go-go team has yet to demonstrate.

Worse, the expense of promoting economic growth, public schooling and human rights in failing states will run athwart the Bush administration’s priority to cut taxes. Bringing poor countries into the global economy will require opening our doors to their goods. Yet low-wage commodity exporters seeking American buyers are sure to mobilize calls from Congress for protection against unfair competition.

Complicating these demands is the arena of power from which Bush will have to lead. While fighting the war in Afghanistan, he makes decisions as commander in chief. The George Bush who must fashion a successful foreign policy to eradicate terrorism acts as head of the executive branch of a three-part government designed by the U.S. Constitution to operate through checks and balances.

The Bush people have emphasized that we are in this fight for the long haul. The “long haul” they have in mind may be strictly military, but their words have nurtured hopes of a sustained effort to get at the stubborn causes of poverty and fanaticism.

Nation-building, as candidate Bush well knew, is a messy business where trial and error–the only possible approach–consumes endless months and billions of dollars.

The bright side of the picture is that many of America’s allies have also been singed by terrorism, either from dissidents inside their country or on their borders. Spain has problems with its Basque separatists, Turkey with the Kurds, Russia with Chechnya and China with its Muslim Uighurs calling for an “Eastern Turkey.” Their national self-interest inclines them to cooperate with the United States.

At the end of the Gulf War, the elder George Bush, enjoying similarly high approval ratings, declared victory after routing Saddam Hussein’s army. He then precipitately announced the arrival of a new world order.

Within months, that phrase had become a term of derision and his ratings plummeted.

But if George W. Bush stays the course and builds from the ground up, he could usher in a new world order and secure for himself the greatness that eluded his father.

*

Joyce Appleby is a professor emeritus from UCLA and past president of the American Historical Assn.

Twenty-three years ago, the Oscars were in turmoil. President George W. Bush had just begun an invasion of Iraq after the Sept. 11 attacks, and as the nation’s TV screens filled with the “shock and awe” campaign, many did not know quite how to proceed with Hollywood’s biggest night.

ABC wanted to postpone, presenters begged off, Jack Nicholson urged his fellow actor nominees to boycott (animated feature winner Hayao Miyazaki did), documentary winner Michael Moore attempted to directly shame Bush from the stage (to loud boos) and many of the acceptance speeches acknowledged the war and included pleas for peace.

President Trump’s recent decision to attack Iran is not precisely the same — American troops have thus far not invaded and the Bush administration’s media blitz of rockets lighting up the sky is absent. No one expected the Oscars to be canceled or delayed and there has been no talk of boycotts; whether the war and (if polls are to be believed) its general unpopularity are noted, either by host Conan O’Brien (who has already said he will not be mentioning Trump) or the winners, remains to be seen.

But if recent history is any indication, it could go unmentioned. Which would be something of a political statement in itself: It would be terrible if the false notion that awards shows have become too political had a chilling effect on anyone who wanted to use their platform to speak about something important they care about.

Thus far, film and television awards winners have stayed away from the issues that have prompted widespread public outrage and protests this year — including the often brutal methods of Immigration and Customs Enforcement, the ongoing concern over the war in Gaza and the endless revelations of the Epstein files.

Despite complaints from certain quarters, awards shows, particularly the Oscars, rarely have more than one or two truly political moments. But this year, the absence has been notable.

Compared with the Grammy Awards, where Trevor Noah, in his final stint as host, roasted Trump and anti-ICE sentiment reigned in speeches and on pins, this year’s Golden Globes (which aired three weeks before the Grammys) appeared to exist in another world. A few stars wore similar pins and spoke on the red carpet, but aside from a few digs about Epstein and CBS News from host Nikki Glaser, there was no mention of the many issues roiling the nation. (As he was beginning to make late-in-speech remarks about this being an important time to make films, Kleber Mendonça Filho, Brazilian director of the non-English language film winner “The Secret Agent,” ran over time and was played off.)

Has Hollywood lost its spine? Or, having been beset for years by grievances that the Oscars have become “too political” and “too woke,” are filmmakers and actors saving their outrage and passion for social media and bowing to pressure to keep their acceptance speeches grateful and celebratory?

“I know that there are people who find it annoying when actors take opportunities like this to talk about social and political things,” said Jean Smart on the Golden Globes red carpet, adding, when she won for actress in a TV comedy: “There’s just a lot that could be said tonight. I said my rant on the red carpet, so I won’t do it here.”

It was an echo of Jane Fonda’s famous 1972 Oscar speech: “There’s a great deal to say, and I’m not going to say it tonight.” And, perhaps, a response to more recent “shut up and dribble” criticism, as distilled by 2020 Golden Globes host Ricky Gervais, who cautioned the audience: “If you do win an award tonight, don’t use it as a platform to make a political speech. You’re in no position to lecture the public about anything. You know nothing about the real world.”

Indeed, as Oscars ratings have plummeted over the last 20 years, some have suggested that political speechifying is to blame. This is patently absurd. Viewership for just about everything except the Super Bowl has dropped dramatically, and the Oscars ratings do not take into account the millions who watch portions of the show on social media. (We’ll see what happens when the Oscars move to YouTube in 2029.)

And the Oscars have never been particularly political.

Speeches that deviate from the ubiquitous laundry list of thank yous always get more attention, whether they’re political or not, for the simple reason that they’re so dang unusual. But taken as a whole, either by decade or particular telecast, the Oscars is mostly, and consistently, apolitical. As in, almost every minute of a three-hour-plus show, year after year after year.

Unless, of course, you consider thanking God to be political. Which I do not. Nor do I categorize as such any speech that underlines the fact of a historic win (as Halle Berry did in 2002), encourages Hollywood to tell more diverse stories (as Cate Blanchett did in 2014) or reminds audiences in a general way that systemic oppression and war are bad (as Adrian Brody did amid his ramblings in 2025).

Many of the speeches that have been branded as “political” are simply underscoring the themes of the films being honored — in 2009, both Dustin Lance Black and Sean Penn advocated for gay rights when accepting Oscars for “Milk,” which chronicled the life of assassinated gay rights activist Harvey Milk. Likewise, John Irving supporting abortion rights and Planned Parenthood after winning for “The Cider House Rules” in 2000 and John Legend and Common speaking passionately about civil rights, past and present, after winning for “Glory,” a song from the civil rights drama “Selma,” in 2015 was only natural.

Sacheen Littlefeather refuses the lead actor Academy Award on behalf of Marlon Brando in 1973.

(Bettmann Archive)

A purely political speech, to my mind, directly calls out specific leaders, policies or crises, which may or may not have anything to do with the film being awarded. The most famous are, of course, Marlon Brando’s decision to send Sacheen Littlefeather to accept his Oscar for “The Godfather” and protest the treatment of Native Americans, and Vanessa Redgrave’s 1978 denunciation of “Zionist hoodlums” who were demonstrating against her involvement in a pro-Palestinian documentary even as she accepted for supporting actress in “Julia.”

In 1993, while many Oscars attendees wore red ribbons to honor those living with HIV/AIDS and call for government assistance, then-couple Susan Sarandon and Tim Robbins took it further, using their time as presenters to ask the U.S. government to allow HIV-positive Haitians being held at Guantanamo Bay to be let into the country. That same year, presenter Richard Gere used the fact that “1 billion people” were watching to send “sanity” to Chinese leader Deng Xiaoping in the hopes that he would allow the people of Tibet to “live free.” (Then-Oscars producer Gil Cates quickly denounced the three presenters; Gere did not return to the Oscars until 2013.)

A year after Moore blasted Bush over Iraq, Errol Morris, winning for “The Fog of War,” briefly compared the war in Iraq to the “rabbit hole” of Vietnam (which was the subject of his film). In 2015, “Boyhood” star Patricia Arquette used most of her supporting actress speech to demand equal wages for women. That same year, “Birdman” director Alejandro G. Iñárritu dedicated his award to his fellow Mexicans, with the hope that they would be treated by Americans “with dignity and respect” so that together, they could build a “great immigrant nation.” (Which frankly plays more purely political now than it did at the time.) A year later, Leonardo DiCaprio spoke about climate change after winning for “The Revenant.”

In 2019, Spike Lee, accepting for adapted screenplay (“BlacKkKlansman”), called on voters in the upcoming election to mobilize and “be on the right side of history” and in 2024, “Zone of Interest” director Jonathan Glazer, accepting for international film, riled many by comparing the dehumanization required for the Holocaust to occur with events in Gaza.

Even now, the most notable examples of political speeches, the ones that are always mentioned, are from the freaking ‘70s. Which certainly obliterates the idea that the Oscars have grown more political and undermines the argument that it is a Big Problem.

Put these relatively few moments next to the endless hours of acceptance speeches that, with varying degrees of emotion, honor the art of movie-making and the legions that support those who are doing it (including God, parents, spouses, children, some random but heaven-sent teacher) and it’s difficult to see much “wokeness.”

The people who gather at the Oscars are storytellers, and many of the stories they tell deal with uncomfortable truths about our collective past, present and future (including best picture front-runners “One Battle After Another” and “Sinners”). Of course nominees and winners have opinions about politics, science, social issues, international conflict and those suffering without recourse or voice — that’s why they make movies. So if a few of them decide to skip thanking their manager or the studio head and say a few words about climate change or whatever current law/policy/presidential action they believe is making lives worse for a lot of people, that’s their choice. They just won an Oscar!

For those uncomfortable watching it, just use the 45 seconds to grab a snack and by the time you’re back, the host will be moaning about how long the show is and the next five winners will inevitably cry and smile; praise their fellow nominees; thank the producers; say something sweet about their cast, crew and mamas; before telling their kids they love them and it’s time to go to bed.

And that’s OK too.