Land of the Surveilled, Home of the Complacent
January 7, 2006
By Ken Sanders
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.
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.