Land of the Surveilled, Home of the Complacent

January 7, 2006
By Ken Sanders

As 2005 drew to a close, there came to light the latest example of the Bush administration's campaign to transform the United States from a nominal democracy to a despotic monarchy. To the dismay of some, but to the surprise of no one, the New York Times revealed that in the wake of 9/11, President Bush authorized the National Security Agency to engage in the warrantless surveillance of U.S. citizens.

In the unholy spirit of such illegal Cold War spying programs as "Shamrock" and "Minaret," the Bush administration has been secretly spying on the telephone conversations and e-mails of U.S. citizens suspected by Bush of having terrorist connections. The White House does not deny that this is true. To the contrary, the Bush administration is proud of its clandestine subversion of what remains of American democracy. Indeed, Bush, Cheney, Rumsfeld and Rice have repeatedly defended the White House's unfettered right to spy on whomever, whenever.

Arrogant boasting aside, there is evidence that Bush & Co. knew that taking a red pen to the Constitution and the Fourth Amendment was wrong. Living up to its reputation as "the paper of record," as well as the leader of the rumored "liberal media," the New York Times complied with the White House's request (threat?) and sat on its story for more than a year. Once the Times got around to publishing its story, the White House immediately directed the Justice Department to find out who leaked Bush's dirty little secret and destroy them.

Regardless of these telltale signs of a President caught red-handed, the Bush administration and its apologists insist that the domestic spying program is both legal and necessary. Legal because it was authorized by Congress. Necessary because, as we have been constantly reminded, everything changed after 9/11. Neither claim holds water.

For legal authority, the Bush administration points to the Authorization for the Use of Military Force (AUMF) of September 18, 2001. As explained in a December 22, 2005, Justice Department letter to members of the Select Committee on Intelligence, the Bush administration believes that through the AUMF, Congress authorized Bush to conduct warrantless surveillance of domestic communications. According to the Justice Department's letter, warrantless domestic spying is a "fundamental incident of waging war" and, therefore, "clearly and unmistakably" authorized by the AUMF.

Unanswered by the Justice Department in its sweeping declaration of unconstitutional executive powers is how Congress could have "clearly and unmistakably" granted Bush such authority when only a handful of Senators even knew about Bush's secret spying program. It would seem axiomatic that Congress could not authorize (much less "clearly and unmistakably" so) something about which a majority of its members, Republicans and Democrats alike, were entirely ignorant.

In fact, at the end of its letter, the Justice Department gets caught in its lie about Congressional authorization. According to the letter, "any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system [Bush's secret domestic spying program] would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities." Translation: Bush never sought Congressional authority to engage in warrantless domestic surveillance. After all, the debates and votes on the AUMF were public. Hell, they were even televised on C-SPAN. Therefore, had Congress really authorized Bush's "early warning system" through the AUMF, it would have been public and would have tipped off our enemies.

In other words, it never happened. Congress simply did not authorize Bush's warrantless voyeurism by passing the AUMF back in 2001. Besides, Bush must think we and our enemies are incredibly stupid if he truly believes that, but for the story by the Times, no one thought the U.S. government was listening to conversations and reading correspondence. Drug dealers, gangs, organized crime syndicates, and terrorists have long taken precautions against possible government eavesdropping. From speaking in code to using disposable cell phones, criminals of all stripes have always acted under the assumption that they might be under surveillance. For Bush or the Justice Department to claim that a public debate about eavesdropping on U.S. citizens would have somehow tipped off the terrorists is asinine.

As for Bush's "everything changed" argument, despite what the White House and its propagandists would like us to believe, everything didn't change after 9/11. Sure, air travel is slightly less convenient than it once was. Otherwise, however, very little is different for most Americans. We are still obsessed with celebrity and are woefully ignorant and apathetic about events occurring around the world. We still drive obnoxiously large trucks and SUVs while insisting that gas be something approaching free. We surround ourselves with gadgets and trinkets without giving a second thought about who made them and under what conditions. In short, we remain just as selfish, complacent, fat and dumb as we were before 9/11.

One thing that did change was the willingness of the secret federal surveillance court to live up to its duty to be detached and neutral when considering warrant applications. Under the Foreign Intelligence Surveillance Act (FISA), the government may spy on U.S. citizens, but only after getting a warrant from the secret Foreign Intelligence Surveillance Court (FISA Court). The government doesn't even need to get the warrant before it starts spying on U.S. citizens – it can wait up to three days from the start of its surveillance to get the FISA Court's rubber stamp.

Pursuant to statute, the FISA Court is charged with determining whether probable cause exists to believe that the targeted U.S. citizen is really a foreign power or an agent thereof. In making that determination, however, the FISA Court is required to defer to the judgment of the government. Thus, the FISA Court will deny or modify a warrant request only if the government has made a "clear error" in its probable cause determination. On the off-chance that the FISA Court does deny or modify a warrant, the government may appeal the FISA Court's decisions to a secret Court of Review to which only the government has access.

As one can see, it's quite the rigorous review.

Not surprisingly, as was recently reported by the Seattle Post-Intelligencer, in the FISA Court's first 22 years of existence, it didn't deny a single one of the government's 13,102 secret warrant applications. Only two were even modified. Since 2001, however, the FISA Court has modified 179 of the Bush administration's 5,645 warrant requests to spy on U.S. citizens. A total of 173 of those modifications occurred in 2003 and 2004. In that same two-year period, the FISA Court rejected or deferred at least six of the Bush administration's warrant requests.

While only little more 3 percent of the Bush administration's secret warrant requests were modified or denied by the FISA Court, the fact that any were modified or denied is telling. On 185 occasions, the FISA Court found that the Bush administration committed "clear error" in its conclusion that there was probable cause to believe that a U.S. citizen was communicating with enemies of the state.

No wonder the Bush administration finds FISA to be too cumbersome. It minimally checks Bush's otherwise unchecked authority.

Ken Sanders is a lawyer and writer in Tucson whose publishing credits include Op Ed News, Z Magazine, Common Dreams, Democratic Underground, Dissident Voice, and Political Affairs Magazine, among others. All of his articles may be found at http://www.politicsofdissent.blogspot.com.