With unusual vigor, The New York Times (Jan. 29)--"Spies, Lies, and Wiretaps"-- editorializes against the Bush Administration's smarmy defense of its illegal secret eavesdopping campaign. Exerpts:
A bit over a week ago, President Bush and his men promised to provide the legal, constitutional and moral justifications for the sort of warrantless spying on Americans that has been illegal for nearly 30 years. Instead, we got the familiar mix of political spin, clumsy historical misinformation, contemptuous dismissals of civil liberties concerns, cynical attempts to paint dissents as anti-American and pro-terrorist, and a couple [sic] of big, dangerous lies.
...
Sept. 11 could have been prevented. This is breathtakingly cynical. The nation's guardians did not miss the 9/11 plot because it takes a few hours to get a warrant to eavesdrop on phone calls and e-mail messages. They missed the plot because they were not looking. The same officials who now say 9/11 could have been prevented said at the time that no one could possibly have foreseen the attacks. We keep hoping that Mr. Bush will finally lay down the bloody banner of 9/11, but Karl Rove, who emerged from hiding recently to talk about domestic spying, made it clear that will not happen — because the White House thinks it can make Democrats look as though they do not want to defend America. "President Bush believes if Al Qaeda is calling somebody in America, it is in our national security interest to know who they're calling and why," he told Republican officials. "Some important Democrats clearly disagree."
Mr. Rove knows perfectly well that no Democrat has ever said any such thing — and that nothing prevented American intelligence from listening to a call from Al Qaeda to the United States, or a call from the United States to Al Qaeda, before Sept. 11, 2001, or since. The 1978 Foreign Intelligence Surveillance Act simply required the government to obey the Constitution in doing so. And FISA was amended after 9/11 to make the job much easier.
We won't soon have a Rove answer to the question "Which important Democrats did you refer to?" But, in the UK, "important" members of Parliament seem to "disagree" with Tony Blair's determination to lift a 40-year-old ban on MI5's snooping on MPs, as revealed by The Telegraph (Jan. 16). Could it be that Bush has for years been warrantlessly intercepting communications to minority-party members of Congress?
Only bad guys are spied on. Bush officials have said the surveillance is tightly focused only on contacts between people in this country and Al Qaeda and other terrorist groups. Vice President Dick Cheney claimed it saved thousands of lives by preventing attacks. But reporting in this paper has shown that the National Security Agency swept up vast quantities of e-mail messages and telephone calls and used computer searches to generate thousands of leads. F.B.I. officials said virtually all of these led to dead ends or to innocent Americans. The biggest fish the administration has claimed so far has been a crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch — a case that F.B.I. officials said was not connected to the spying operation anyway.
The spying is legal. The secret program violates the law as currently written. It's that simple. In fact, FISA was enacted in 1978 to avoid just this sort of abuse. It said that the government could not spy on Americans by reading their mail (or now their e-mail) or listening to their telephone conversations without obtaining a warrant from a special court created for this purpose. The court has approved tens of thousands of warrants over the years and rejected a handful.
As amended after 9/11, the law says the government needs probable cause, the constitutional gold standard, to believe the subject of the surveillance works for a foreign power or a terrorist group, or is a lone-wolf terrorist. The attorney general can authorize electronic snooping on his own for 72 hours and seek a warrant later. But that was not good enough for Mr. Bush, who lowered the standard for spying on Americans from "probable cause" to "reasonable belief" and then cast aside the bedrock democratic principle of judicial review.
...
The rules needed to be changed. In 2002, a Republican senator — Mike DeWine of Ohio — introduced a bill that would have done just that, by lowering the standard for issuing a warrant from probable cause to "reasonable suspicion" for a "non-United States person." But the Justice Department opposed it, saying the change raised "both significant legal and practical issues" and may have been unconstitutional. Now, the president and Attorney General Alberto Gonzales are telling Americans that reasonable suspicion is a perfectly fine standard for spying on Americans as well as non-Americans — and they are the sole judges of what is reasonable.
So why oppose the DeWine bill? Perhaps because Mr. Bush had already secretly lowered the standard of proof — and dispensed with judges and warrants — for Americans and non-Americans alike, and did not want anyone to know.
...
The Senate Judiciary Committee is about to start hearings on the domestic spying. Congress has failed, tragically, on several occasions in the last five years to rein in Mr. Bush and restore the checks and balances that are the genius of American constitutional democracy. It is critical that it not betray the public once again on this score.
The Times hits a few false notes: e.g. "The secret program violates the law as currently written. It's that simple." No. It's simpler: The secret program violates the law, period. To qualify, with "as currently written," is to suggest that the relevant law has been in a state of flux. That's precisely what Gonzales et al. would like us to believe: as though quicksilver changes had made the law difficult to pin down. Not so. In fact, as Bush himself acknowledges, warrantless snooping contravenes a law that has been on the books since 1978. But The Times is showing improvement, and it seems unlikely that the minority members of the Judiciary Committee will let go of this one--at least not until they get assurances that their communications aren't being warrantlessly monitored.
Recent Comments