Bush Spy Program – Down But Not Out

By Joe Auciello / September 2006 issue of Socialist Action

On Aug. 17, ruling in favor of free speech and privacy, U.S. District Judge Anna Diggs Taylor rejected the Bush administration’s rationales for a spying program that operated outside the law and ordered the operation shut down.

The government immediately filed an appeal, and the judge’s order does not take effect. A hearing is scheduled for Sept. 7 to determine if and how the verdict will be enforced.

Shortly after Sept. 11, 2001, President Bush had authorized the National Security Agency to place wiretaps on American citizens and residents without obtaining a warrant—that is, without the necessary approval of a court.

This action violated the Foreign Intelligence Surveillance Act (FISA), a law passed by Congress in 1978 to define and limit a president’s ability to spy on American citizens and permanent residents. In the wake of the Watergate scandal and of Senate investigations into FBI and CIA abuses, the law required the president and the spy agencies to obtain a warrant before or within three days of using a wiretap.

According to the FISA legislation, a special, secret court was established, which was clearly intended to provide “the exclusive means by which electronic surveillance … and the interception of domestic wire and oral communications may be conducted.”

The Bush administration claims that the “inherent powers of the president,” as well as a congressional resolution passed after 9/11 authorizing the president to pursue terrorists, justifies bypassing the FISA court and denying important civil liberties to U.S. citizens and residents.

The FISA court is hardly any great barrier to the abuse of domestic surveillance, nor is it any real guarantee of civil liberties. FISA judges are appointed, not elected or subject to popular recall. Its deliberations are secret.

What’s more, this court has issued warrants in almost every instance that a president or the CIA has asked for them. Federal agents can even use wiretaps up to three days before applying to the court for a warrant. A more compliant and complicit judiciary could not be created. Far from being a civil liberties watchdog, the FISA court has all the bark and bite of a presidential lapdog.

Yet, this is the court that the Bush administration finds too stringent, too unwieldy, and too restrictive. President Bush and the government spy agencies insist on their right to open postal mail, intercept e-mail, and listen in on the phone conversations of anyone they consider suspect.

Moreover, they intended to conduct these illegal activities—virtually erasing the Fourth Amendment from the Bill of Rights—in secret and for as long as they wished. These, says George Bush, are the inherent powers of a president in wartime.

Judge Taylor, in a scathing rebuke of the government, declared, “There are no hereditary kings in America and no powers not created by the Constitution.” Judge Taylor found that this Republican administration had violated “not only the laws of the Congress but the First and Fourth Amendments of the Constitution itself.” Therefore, the federal government was “permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way.”

This finding, predictably enough, roused an indignant outcry from the president, government officials, and leading Republicans. Attorney General Alberto Gonzales said, “the program is lawful,” and cited as evidence—of all things—the periodic reviews done by his own lawyers.

The Democrats have offered only a tepid response. Senators Clinton and Kerry, likely contenders for the 2008 presidential race, were quick to support the ruling and criticize the Republicans. They glossed over the fact that key Democrats, including the Senate and House minority leaders, were briefed on the NSA spying operation from the beginning and are therefore complicit in the illegal program.

The real Democratic Party agenda was most likely revealed by Senate Minority Leader Henry Reid, who said Judge Taylor’s decision showed the importance for the president “to work with the Congress to develop effective tools to defeat terrorists.”

The Senate leader could have insisted that the Bush administration just obey the law, but instead the Nevada Democrat merely pleaded to be a junior partner in any new plan to develop effective tools to defeat the Constitution.

Meanwhile, the plaintiffs in the case—the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Council on American-Islamic Relations and Greenpeace—hailed the ruling in effusive terms.

“Today’s ruling is a landmark victory against the abuse of power that has become the hallmark of the Bush administration,” said ACLU executive director Anthony D. Romero. “Government spying on innocent Americans without any kind of warrant and without Congressional approval runs counter to the very foundations of our democracy.”

Since federal attorneys had filed to dismiss the case and had thrown up every possible argument to prevent it from ever being heard, the enthusiasm of the plaintiffs is entirely understandable. But what should be clear to all concerned is that this court victory is tentative and that the present administration will do everything in its power to enlarge its authority at the expense of civil liberties.

At a recent press conference President Bush asked, “[W]ill we continue to stay engaged in helping reformers, in working to advance liberty, to defeat an ideology that doesn’t believe in freedom?” As long as it is understood that the president’s question applies to his own regime, the answer must be an unqualified “yes.”