by Joe Auciello / March 2006 issue of Socialist Action newspaper
Despite mounting public opposition, increased Democratic criticism, and prominent Republican defections, the Bush administration seems determined to maintain its illegal domestic spying operation. In January’s State of the Union address, the president again cited “authority given to me by the Constitution and by statute” as justification to continue
monitoring phone calls and e-mails of American citizens and permanent residents without a court warrant if for any reason federal officials suspect they have ties to terrorist groups overseas.
In 1978, the Foreign Intelligence Surveillance Act (FISA), a law enacted by Congress, required the government to seek a warrant from a secret court when the government wants to set up wiretaps. The law states that judicial warrants “shall be the exclusive means by which electronic surveillance … and the interception of domestic wire and oral communications
may be conducted.”
Following the terrorist attacks of 2001, Bush secretly authorized the National Security Agency (NSA) to conduct wiretaps and physical searches without first obtaining a warrant, thus bypassing the FISA court. The president’s authorization hardly seemed necessary.
Between 1979 and 2004, according to the Washington Post (Feb. 9), the FISA court “approved 18,748 warrants and rejected five.” Further, the Patriot Act allows the government to place a wiretap without prior judicial approval, provided one is obtained within 72 hours.
Yet, the president claims these laws hinder the government’s ability to fight terrorism. The Bush administration asserts that the NSA, under the president’s orders, may eavesdrop on citizens without a warrant or any permission from the court. As commander in chief, Bush claims the right to ignore the law.
Unfortunately for President Bush, fewer and fewer people, including key leaders of his own party, believe his rationale. A Harris Interactive poll taken for the American Bar Association found 77 percent with “reservations” about the president’s actions, while 45 percent stated government spying without a warrant “would never be justified.” Only 18 percent actually
approved of the president’s decision to bypass federal courts.
At a meeting of its delegate, the American Bar Association (ABA), comprising 400,000 members, urged Congress to reject the president’s interpretation of the 2001 authorization of military force, asked for public Congressional hearings, and called upon the president to abide by federal law.
Michael Greco, the ABA president, in a news conference said, “As our poll shows, and legal scholars agree, the awesome power of government to penetrate citizens’ most private communications must not be held in one set of hands. … To prevent the very human temptation to abuse this power there must be checks and balances in the form of oversight by the courts and Congress.”
Meanwhile, Congress shows little willingness to assert its authority against the executive branch of government or to protect the rights of American citizens. Under Republican chairman Sen. Arlen Specter, the Senate Judiciary Committee largely criticized U.S. Attorney General Alberto Gonzales’ defense of Bush’s policies. Since then leaders of the
House Intelligence Committee announced they will open a Congressional inquiry into the Bush spying program, but Republican leaders are wrangling to limit the scope of the investigation.
At the same time, the Senate Intelligence Committee declined to pursue its own investigation “after the White House, reversing course, agreed to open discussions about changing federal surveillance law” (The New York Times, Feb. 17, 2006). The committee’s senior Democrat, Sen. John D. Rockefeller IV, criticized the concession, saying, “It is apparent to me that the White House has applied heavy pressure in recent weeks to prevent the committee from doing its job. … I believe this is another stalling tactic.”
While trying to cut a favorable deal with Congress, the Bush administration is also going after its critics. Last December, speaking to reporters at the White House, Bush criticized The New York Times articles that revealed his secret NSA program, calling them “a shameful act” and suggested that publication was also an act of treason: “My personal opinion is … for someone to disclose this very important program in a time of war … is helping the enemy” (Boston Globe, Dec. 20, 2005).
Federal agents, working along with Justice Department officials, have since begun a criminal investigation to determine how information about the NSA spying operation was revealed to reporters. CIA director Porter Goss told the Senate Intelligence Committee, “It is my aim and it is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information” (The New York Times, Feb. 12, 2006). Reporters, in other words, will have to name names or face jail.
As the White House maneuvers and as Congress bargains, important lessons from recent history must not be lost. As the power of any branch of government increases, the rights of the people decrease. In the name of national security, peaceful protesters were secretly spied on, wiretapped, harassed, burgled, and victimized by the government. That was in the 1960s and 1970s. That past, of unrestricted government spying and covert operations, must not become the future.