24 January 2006

Domestic spying

Presidential hubris has reached new heights with Bush's recent claim, regarding the domestic spying program, that he's essentially above all checks and balances. Let's review some of the facts:

1. Bush claims authority from Article II of the Constitution, which says "the president shall be commander in chief of the Army and Navy of the United States." But there's a long trail of twisted logic from there to domestic spying. For one, let us imagine for the moment that the spying wasn't ordered by the "commander in chief" of the military but was instead ordered by, let's say, an Army captain. According to this argument, there should be nothing wrong with it. The Army captain's authority may only be over his local unit, but it seems to me that he should be able to use it to spy on Americans if such spying were (notice the counter-factual subjunctive) legal and if it were to protect Americans.

2. Bush argues that the extreme state of war we're in (his idea not mine) justifies extreme measures. Yet the "war on terror" is hardly a war in any conventional sense of the term. "Wars" are by definition situations that are atypical. They have clear objectives after which a country can expect to convert to a normal way of doing things. The nebulous "war" of the present is destined to go on forever. The only conceivable way of ending the current war is not through the achievement of some overseas victory but by stringing up Bush and his minions below a cherry tree on the White House lawn. It follows that the granting of supposed war-time powers extending indefinitely by Congress was un-Constitutional. (In light of such negligence, 95% of those in Congress should not be re-elected next term.)

3. The Fourth Amendment guarantees people the right to be secure from "unreasonable searches and seizures." No court shall issue a search warrant, it says, except upon demonstrating that there's "probable cause" to think that a law is being broken and the warrant seeker describes the specific place to be searched and the person or things to be seized. The Constitution is the highest law in the land. It hardly seems reasonable to think that its provisions can be trumped simply by the president's judgment that some action is necessary to protect Americans from harm. As Justice Sandra Day O'Conner wrote in a decision a couple years back, "We have long since made it clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

4. Bush and his advisers contend that Congress "confirmed and supplemented" the president's constitutional power by authorizing the use of force against terrorists three days after the Sept. 11, 2001, attacks. The Washington Post recently had a op-ed article claiming that the eaves-dropping actually occurred before this. Not that it would matter, but the contorted logic and constant shifts in position in trying to find an excuse for illegal acts is forming the leitmotiv for this mis-administration. Since Congress expressly forbid such powers when passing initial legislation, it seems like Bush would have the decency to tell the American people that he had decided to disobey the law.

5. Congress passed the Federal Intelligence Surveillance Act of 1978 expressly to prevent presidents from using eaves-dropping on citizens. FISA asserts that electronic surveillance within the United States requires court oversight to avoid violating the Constitutional prohibition against unreasonable searches. If Bush believed that FISA was unConstitutional, why didn't he say so? Why has he kept such views secret? FISA is said to tie the government's hands, but it actually provides enormous loop-holes to allow for searches, to include a 3-day period during which the government can monitor people without a warrant after which a warrant is necessary. If FISA is unConstitutional, it's because of this provision--not because it excessively limits presidential power. FISA expressly makes it a crime to engage in electronic surveillance outside the statute's framework unless another law authorizes it. This means that all NSA employees who are assisting Bush in breaking the law as well as Bush himself are subject to arrest and imprisonment--even after Bush leaves office.

6. As has been pointed out by a number of top legal experts, if Bush is allowed to simply ignore laws everytime he decides that his actions are justified to protect the nation, it's hard to see where such actions would stop. Bush could easily decide tomorrow that a CIA assassination of a U.S. citizen was necessary to protect Americans. And anyone who discussed such an assassination would, in the current political climate, be arrested as a whistle-blower who violated their security clearance.

7. For these and so many other reasons, it's absolutely necessary that we impeach and imprison Bush. We also need to arrest and imprison all intelligence personnel who have complied with illegal orders.

The Daily Background had this on the issue:

WaPo: President Bush pushed back Monday at critics of his once-secret domestic spying effort, saying it should be termed a “terrorist surveillance program” and contending it has the backing of legal experts, key lawmakers and the Supreme Court.

I guess if the President says the program only spies on terrorists, then is he accusing Pledge of Resistance-Baltimore (a Quaker peace group) of terrorism. Since they were extensively spied upon under the President’s “terrorist surveillance program.” Apparently the Center for Constitutional Rights is also a terrorist organization. As is the American Civil Liberties Union. And Greenpeace. Since they’ve been spied on (mirror) by the NSA’s terrorist surveillance program, all of them are terrorist organizations– since the NSA never makes mistakes.
Anybody noticing a pattern in the types of groups that are being spied on? Nixon
was brought down for spying on his political enemies too, you know.

Post Script--After posting this, I came across this odd news from a WaPo article. The intelligence community is evidently refusing to discuss programs with the very members of the House and Senate Intelligence Committees who are responsible for watching over them. We need to change the civics textbooks we have our children read in school. Our system is definitely not based on a notion of "checks and balances."

Former intelligence officer Russ Tice wants to tell Congress about what he believes were illegal actions undertaken by the National Security Agency in its highly sophisticated eavesdropping programs.

But he can't. He's been warned by the NSA that the information is so highly classified that even members of the House and Senate Intelligence Committees - who are charged with overseeing the work of the intelligence community - don't have clearance to hear about them. If Mr. Tice talks at the hearings early next month, he could face criminal prosecution.

Other blogments on the issue can be found at The Whisper Campaign, Martin's Musings, The Poor Man Institute, and The Corpus Callosum (on talk of impeachment hearings).


Ole Blue The Heretic said...

The implications of the spying scandle will grow, and Bush will have no where to hide. The only problem is that a courages press corp, and a strongly led force from congress and the senate will be needed.

Juggling Mother said...

The only conceivable way of ending the current war is not through the achievement of some overseas victory but by stringing up Bush and his minions below a cherry tree on the White House lawn

I think Bush's idea of winning the war is for the whole world to be ruled under his version of US law.

Anonymous said...

And then we'd all be in that bizarre Orwellian realm where law is individual fiat, truth is deceipt, and freedom is slavery.

LaPopessa said...

And more acronym spy groups just keep showing up. If you haven't seen the January 30th issue of Newsweek, check out that story on the Department of Defense's CIFA (Counterintelligence Field Activity) crew that has helped save America from Quakers and kids protesting Halliburton by handing out PB&J sandwiches.