- Last Monday, President Bush journeyed to Manhattan, Kansas
to justify his Executive Branch use of warrantless spying on American citizens.
Saying that the program--apparently in effect for the past four years--should
be called the "terrorist surveillance program", Bush said he
had consulted "all kinds of lawyers" on the matter. He then
took an un-lawyer-like leap by arguing that a Congressional resolution
authorizing his use of military force in the war against terrorism provided
the legal authority he needed to ignore the statutory requirements of the
Foreign Intelligence Surveillance Act (FISA) of 1978. That act created
a special court and a procedure for authorizing such surveillance. It
was enacted principally to prevent future executive excesses of the same
type as practiced by the Nixon administration.
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- Bush revealed in this speech, as was already apparent,
that he is no lawyer or student of the law. The Congressional Authorization
for Use of Force (Public Law 107-40) specifically granted authority to
use military forces against "nations, organizations or persons"
that may have taken part in or aided the 9/11 attacks or to prevent "any
further acts" thereby. But the clear problem is that the resolution
never directly or indirectly mentioned the subject of domestic spying or
intelligence surveillance. In fact, the Congress took action in 2003 to
stop so-called "suspicionless" searches of Americans by the Pentagon
and other agencies. Virtually on top of that Congressional action, Bush
authorized the domestic spying program, while the Congress appears to have
intended that domestic searches, if any, would remain subject to FISA rules.
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- The President and others speaking on the side of warrantless
spying all seem convinced that the law of the land is made by iteration:
If enough senior officials assert that domestic spying is legal, that is
the law. Former National Security Agency (NSA) Director Michael Hayden
went even further; he asserted that the practice established "a lower
legal standard" for eavesdropping on suspected terrorists, but the
practice was still "within the law". Hayden also appears to
have argued that the Fourth Amendment does not require probable cause to
justify any searches.
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- The Hayden concept of a law that sets one standard for
some people but a lesser standard for other people seems a warped notion
for any country that lives by the rule of law. It may be that some laws
are not applied uniformly, no matter how carefully drafted. However, any
assurance of legal fairness is truly jeopardized by the Hayden argument.
Moreover, the argument Bush makes, that he was "briefing Congress"
appears to mean only that he confided in a few close buddies on the Hill.
That normally would not comprise congressional consultations.
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- Attorney General Gonzales, who should know better, made
the same arguments, asserting that the Congressional resolution on the
use of force (PL 107-40) "removes any possible tension" between
the requirements of FISA and the President's actions on this matter. Gonzales
either inadvertently or deliberately suggests that Congressional authority
to use military force provides legal carte blanch to do anything else the
President might think useful, regardless of existing law. Gonzales also
mentions the President's powers under Article II of the Constitution. But
those powers are not defined, and there is no chain of constitutional interpretation
saying that domestic spying or other violations of civil liberties are
among those powers.
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- The sum of the Bush, Hayden and Gonzales opinions on
how US law works suggests that our system is in danger of auto destructing.
In a tossup between established law and perceived necessity, the law is
cast aside? In times of uncertainty, the people sensibly seek strong leadership,
but in the process may not see the decay of checks and balances. Congress
willfully helped that process by conceding war-making powers to the President
that constitutionally are reserved to the Congress.
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- This is all being done in a security environment that
consists mainly of advertised threats. Osama bin Laden, if he is still
alive, and al Qaida certainly should be inspired by what they see. Much
of our undoing is being achieved with inexpensive videos and cassette tape
recordings, not the force of arms. They simply threaten us and watch for
results, while we spend ourselves into deepening debt in pursuit of a chimerical
enemy--terrorism, and we disassemble our democracy in mounting the chase.
The first signs of decay are how we treat our own people.
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- The simplest interpretation of the Bush, Gonzales and
Hayden argument is that they have defined two classes of Americans. As
Bush put it in Manhattan, Kansas, allowing NSA to monitor the international
calls of Americans who have "suspected ties" to terrorists is
not really "domestic spying." That is truly disingenuous, because
he suggests that there is a sub-class of citizens, those who are suspected
of terrorism connections, who are not entitled to legal protections normally
afforded Americans; therefore, spying on them is not "domestic".
They automatically forfeit their rights, without benefit of reclama or
the constitutional right to confront their accuser. They seem ipso facto
to fall into the class of "enemy combatants".
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- An even larger difficulty with the Bush policy is that
the factual rationale for warrantless searches/surveillance is flimsy.
By saying that they are spying only on individuals who are "suspected"
of overseas terrorism connections, they are implying that US officials
have some prior knowledge of a known or suspected overseas terrorist connection.
Such prior knowledge should provide a basis for presenting the matter
to a FISA court as the 1978 law requires, especially since that law sets
a procedure to permit action in time of the essence cases. The administration
complaint that legal procedures take too long is simply not demonstrable.
Since they don't ask, how would they know?
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- What is demonstrable is that the administration exhibits
a morbid fear of transparency. In his Manhattan, Kansas speech Bush expressed
concern about Iran being "a non-transparent society", but the
Bush administration has become non-transparent to a degree that threatens
the proper functioning of a democratic government. The Bush/Gonzales defenses
of domestic spying are actually arguments for exclusive and unquestionable
powers of the President, rather than justifications for correct action
under a system of laws. In fact, if Bush actually had, as he says, "all
kinds of lawyers review the process", the arguments he has made suggest
there were legal prostitutes among his consultants.
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- By arguing its case in the superficial or legally spurious
manner so far exhibited, the administration actually demonstrates a practice
of continuing executive deception. The way to shed the odor of "domestic
spying" and executive deceit is to bring administration practices
within established law. Nothing argued by Bush, Gonzales, Hayden, or others
makes a case to do otherwise. If the United States cannot survive terrorism
without destroying its values and system of laws, we are wasting our time.
Rebranding "domestic spying" really should mean: Enforce FISA,
and provide proper oversight!
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- _____
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- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose immediate pre-retirement positions were as Deputy
Director of the State Office of Counterterrorism, and as Chairman of the
Department of International Studies of the National War College. He will
welcome comment at wecanstopit@charter.net.
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