Trifler, Fibber, Sophist, Spy: How Bush
Abolished the Constitution
December 21, 2005
By Pierre Tristam
James Bamford is a codebreaker in his own right, an investigative
reporter of the Seymour Hersh kind. His latest is the profile
of John Rendon and the Rendon Group, chief flackers for the
Bush administration and wag-the-dog manipulators of world opinion
(the Rendon Group's bogus storylines helped sell the Iraq war to
a too-trusting American public). But six years ago, in the waning
days of the Clinton administration, Bamford wrote a stunning
short piece for the Washington Post about the NSA,
the National Security Agency that, as the New York Times
on Monday, has been spying on Americans, on Bush's orders, since
2001, and to the tune of perhaps 500 eavesdrops at any given time.
Bamford (who later published
one of the only books on the NSA) begins his Post piece
by describing a massive NSA installation in Yorkshire, England,
the largest of the agency's many eavesdropping operations around
the world. By 1999, the cold war long over, it should have been
shrinking. Instead, it was expanding vastly. (By then the NSA, by
far the largest intelligence agency in the western world, numbered
38,000 employees to the CIA's 17,000). "People in Europe and the
United States are beginning to ask why," Bamford wrote in 1999.
"Has the NSA turned from eavesdropping on the communists to eavesdropping
on businesses and private citizens in Europe and the United States?"
The question was answered a few days ago, and confirmed by the
president in the last two days. But how. Monday's White
House news conference showed President Bush at his craven worst.
He defended his decision to authorize spying by citing his reliance
on - as he put it - "the constitutional authority to protect our
country. Article II of the Constitution gives me that responsibility
and the authority necessary to fulfill it."
That's the sort of misleading inaccuracy you'd expect from a fast
talker in a high school debating match. You don't expect it from
a president. Article II does not give the president a blank check
to do as he will, in time or peace or war. Article II is
pretty specific. It lays out electoral law, qualifications, matters
of succession. It states with unequivocal clarity that "President
shall communicate to Congress" by various means. It spells out the
Oath of Office, which maybe the president had in mind when he referred
to the "responsibility and the authority necessary" to protect the
The Oath, however, says nothing about abrogating all other constitutional
powers in deference to the presidency, no matter what the circumstances.
To the contrary: "I do solemnly swear(or affirm) that I will faithfully
execute the Office of the President of the United States, and will
to the best of my Ability, preserve, protect and defend the Constitution
of the United States." President Bush is confusing protecting
his power and self-fulfilling prerogatives (see "enemy combatants,"
secret prisons, open-ended detentions without charge, etc.) with
protecting and defending the Constitution. Note that Article II
considers the president's responsibility toward the Constitution
to be supreme - beyond his responsibility to the nation: principle
above immediacy, law above expediency. In his news conference Monday
Bush simply rewrote the Constitution to suit, soothe and sanction
Section 2 of Article II does refer to the president's role as Commander-in-Chief.
But here's where this president, like every president since Ronald
Reagan, has expressly misread this clause, which says nothing about
the president being Commander-in-Chief of the nation - of people
like you and me, of the school bus driver, of Exxon's employees,
of anybody not wearing a military uniform. "The President
shall be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into actual
Service of the United States." That's all. Grant him the Air Force
and the Marines on top of that. But no one, and nothing, else
is under his military command. (John Lukacs, the historian, wrote
in 2003 of the "unnecessary and unseemly habit" of president's
"quite wrong" salutes as they step off planes or choppers, "especially
George W. Bush, who steps off his plane and cocks a jaunty salute.")
What Section 2 of Article II does require the president
to do is seek the advise and consent of Congress son various matters
in executive and foreign policy purviews. Blank checks? Extraordinary
powers in time of war? Executive privilege? Executive prerogative?
Nada, nada, nada, nada. One last thing Article II does address:
presidential impeachment in case of conviction of "Treason, Bribery,
or other high Crimes and Misdemeanors."
So much for the president taking cover behind Article II. But if
his constitutional cover was so poorly thought out, you can imagine
what his lesser defenses amounted to. He claimed, in the second
prong of his papier maché defense, that "of course, we use FISAs."
That's a reference to the Foreign Intelligence Surveillance Act
of 1978. "But FISA is for long-term monitoring. What is needed in
order to protect the American people is the ability to move quickly
FISA allows secret monitoring and surveillance as long as a secret
court set up under FISA's authority provides warrants for such surveillance.
The secret court has received 19,000 requests for such warrants
since 1979. It has honored all but five of them. It's not difficult
to get a warrant immediately, or to apply a warrant retroactively
- an absurd allowance in the FISA law that renders it almost toothless
as a tool for oversight, but let that one pass. To Bush, even FISA's
rickety requirements weren't loose enough. He wanted it all, complete
authority to spy, untrammeled, because "What is needed in order
to protect the American people is the ability to move quickly to
detect." So he ordered it.
"Now, having suggested this idea," Bush said, "I then, obviously,
went to the question, is it legal to do so? I am - I swore to uphold
the laws. Do I have the legal authority to do this? And the answer
is, absolutely. As I mentioned in my remarks, the legal authority
is derived from the Constitution, as well as the authorization of
force by the United States Congress."
We've already dealt with his claim that the authority is derived
from the Constitution. What of the U.S. Congress? He answered the
question himself. He won "authorization of force," not - again -
a blank check to override the nation's domestic laws. Otherwise,
why even bother with a Patriot Act, with FISA? Bush's reliance on
FISA (both as an obscure acronym from which he can derive a bit
of authority, thanks to Americans' strange trust of acronyms, but
as a legal buttress, too) should have raised red flags in anyone's
memory. What, exactly, is the Foreign Intelligence Surveillance
Act, and why was it adopted in the first place? Here, James Bamford's
1999 piece is a vital dot-connector:
In the mid-1970s, the Senate and House Select Committees on
Intelligence were created in part as a result of NSA violations.
For decades, the NSA had secretly and illegally gained access
to millions of private telegrams and telephone calls in the
United States. The agency acted as though the laws that applied
to the rest of government did not apply to it.
Based on the findings of a commission appointed
by President Ford, the Justice Department launched an unusually
secret criminal investigation of the agency, known only to a
handful of people. Senior NSA officials were read Miranda warnings
and interrogated. It was the first time the Justice Department
had ever treated an entire federal agency as a suspect in a
criminal investigation. Eventually, despite finding numerous
grounds on which to go forward with prosecution, Justice attorneys
recommended against it. "There is the specter," said their report,
which the government still considers classified, "in the event
of prosecution, that there is likely to be much 'buck-passing'
from subordinate to superior, agency to agency, agency to board
or committee, board or committee to the President, and from
the living to the dead."
As a result of the investigations, Congress
in 1978 passed the Foreign Intelligence Surveillance Act (FISA),
which stated in black and white what the NSA could and could
not do. To overcome the NSA's insistence that its activities
were too secret to be discussed before judges, Congress created
a special federal court, the Foreign Intelligence Surveillance
Court, to hear requests for warrants for national security eavesdropping.
In case the court ever turned down an NSA request, the Foreign
Intelligence Surveillance Appeals Court was created. It has
never heard a case.
In other words, President Bush on Sunday and Monday - like his
many defenders in the punditocracy and the blogosphere - has been
relying on FISA to defend his warrantless domestic spying; relying,
that is, on the very law created in order to counter exactly this
sort of abuse back in the 1970s.
It doesn't stop here. To further dig his grave while seemingly
adding a brick or two to his schlepping on a hill, Bush used the
McCain tactic: it's a new world out there, everything changed with
"September the 11th," it is therefore necessary to stay
ahead of the terrorists by getting ahead of some of the immediate
constraints. He makes that argument in what was the most incoherent
and self-defeating response of Monday's news conference, after he
was asked "why, in the four years since 9/11, has your administration
not sought to get changes in the law instead of bypassing it, as
some of your critics have said?
THE PRESIDENT: I appreciate that. First, I want to make clear
to the people listening that this program is limited in nature
to those that are known al Qaeda ties and/or affiliates. That's
important. So it's a program that's limited, and you brought
up something that I want to stress, and that is, is that these
calls are not intercepted within the country. They are from
outside the country to in the country, or vice versa. So in
other words, this is not a - if you're calling from Houston
to L.A., that call is not monitored.
Not exactly. The Standard Times in new Bedford, Mass., reported
on Dec. 17 that agents of the Homeland Security Department showed
up at a Dartmouth University Students' home to inquire about an
inter-library loan request he'd made for… Mao's Little Red Book.
Two professors who reported the incident to the paper "said the
student was told by the agents that the book is on a 'watch list,'
and that his background, which included significant time abroad,
triggered them to investigate the student further."
If Homeland Security agents are devoting that much attention to
an innocuous student's term paper, it is unlikely that the NSA,
with its history of acting above the law, and President Bush, with
his messianic sense of being the law, are limiting the surveillance's
scope to foreigners. Bush concedes as much in his next sentence,
when he slouches toward his incoherent self-defense on legal grounds
and invokes the make-it-up-as-you-go edicts of Alberto Gonzales:
And if there was ever any need to monitor, there would be a
process to do that. I think I've got the authority to move forward,
Kelly. I mean, this is what - and the Attorney General was out
briefing this morning about why it's legal to make the decisions
I'm making. I can fully understand why members of Congress are
expressing concerns about civil liberties. I know that. And
it's - I share the same concerns. I want to make sure the American
people understand, however, that we have an obligation to protect
you, and we're doing that and, at the same time, protecting
your civil liberties. Secondly, an open debate about law would
say to the enemy, here is what we're going to do. And this is
an enemy which adjusts. We monitor this program carefully. We
have consulted with members of the Congress over a dozen times.
We are constantly reviewing the program. Those of us who review
the program have a duty to uphold the laws of the United States,
and we take that duty very seriously.
But there's another problem with the NSA that the president naturally
and conveniently won't go into, because it demolishes his allegation
that "we are constantly reviewing the program" on legal grounds
and for civil libertarian reasons: the NSA operates under constraints
established by Congress in the late 1970s, long before the age of
email, faxes, the Internet. "For example," Bamford wrote in 1999,
"the 1978 FISA prohibits the NSA from using its 'electronic surveillance'
technology to target American citizens. But that still leaves open
the possibility that Britain's GCHQ or another foreign agency could
target Americans and turn the data over to the NSA."
If the United States can use rendition of prisoners, sending them
to foreign prisons for a work-up in exchange for the information,
why wouldn't rendition work in reverse, with information, and with
such compliant allies? "Another problem," Bamford wrote, "is that
the FISA appears not to apply to the NSA's monitoring of the Internet.
While covering such things as 'wire' and 'radio' communications,
there is no mention of 'electronic communications,' which is the
legal term for communicating over the Internet as defined by the
Electronic Communications Privacy Act of 1986. Worse, FISA applies
only 'under circumstances in which a person has a reasonable expectation
In sum, Bush is once again relying on the law, when he relies on
it at all, by what the law omits. The rest, he merely invents. And
when he's asked the one thing that would give all these liberty-busting
theatrics at least some credibility - has this netted any arrests,
any worthy investigations, any leads in the war on terror? - he
punts. It was one of the last questions of the dismally well-behaved
news conference: "Could you tell us about the planned attacks on
the U.S. that were thwarted through your domestic spying plan?"
The president's answer: "No, I'm not going to talk about that, because
it would help give the enemy notification and/or, perhaps, signal
to them methods and uses and sources."
One question was not asked. Who, Mr. President, is the enemy?
The NSA's ears have the answer: everyone.
Tristam is a columnist and editorial writer at the Daytona Beach
News-Journal and editor of Candide's Notebooks (www.pierretristam.com).