Bush’s latest success came as part of a supposed
“concession” to Congress that would grant two new Republican-controlled
seven-member subcommittees narrow oversight of Bush’s warrantless
wiretapping of Americans.
While “moderate” Republican senators – Mike DeWine
of Ohio, Olympia Snowe of Maine, and Chuck Hagel of Nebraska – hailed
the plan as a retreat by the White House, the deal actually blesses
Bush’s authority to bypass the courts in spying on Americans and imposes
on him only a toothless congressional review process.
Indeed, the congressional plan may make matters worse, broadening the
permissible scope of Bush’s wiretaps to include Americans deemed to be
“working in support of a terrorist group or organization.”
Given Bush’s record of stretching words to his advantage – and his
claim that anyone who isn’t “with us” is with the terrorists – the vague
concept of “working in support” could open almost any political critic
of the Bush administration to surveillance.
Plus, the only check on abuses would be the closed-door oversight
work of the seven-member panels, which would only be informed of a
warrantless wiretap after it had been in place for 45 days. Republicans
also would have four of the seven seats on each subcommittee and any
dissent from the minority Democrats would be kept secret.
In other words, the plan would let Bush and his Republican
congressional loyalists conduct wiretaps of anyone whose activities
might be called supportive of terrorists, while any Democratic critic
would be muzzled from saying anything publicly under penalty of law.
Under such an arrangement, it would not be difficult to envision the
wiretapping of journalists writing critical articles about the abuse of
terrorism suspects, or of disarmament experts who disagree with Bush’s
claims about some “rogue” state’s weapons of mass destruction, or of a
political rival who challenges Bush’s interpretation of his
Indeed, many Bush supporters have lobbed accusations of “treason”
against the likes of journalist Seymour Hersh, weapons inspector Scott
Ritter and former Vice President Al Gore – because they have presented
information that clashes with Bush’s agenda.
Other influential Republicans, such as Sen. Lindsey Graham of South
Carolina, have urged Bush to move aggressively against suspected “fifth
columnists” inside the United States who supposedly sympathize with the
Graham also has called on Bush to use high-tech surveillance
techniques to “map the battlefield electronically,” which in the
Internet Age means going beyond assessing the physical battlefield to
examine the political connections among potential enemies so they can be
neutralized at a time of crisis.
“Here’s where I think I’m your biggest
fan,” Graham told Attorney General Alberto Gonzales during Senate
Judiciary Committee hearings on Feb. 6. “During the time of war, the
administration has the inherent power, in my opinion, to surveil the
enemy and to map the battlefield electronically – not just physical, but
to electronically map what the enemy is up to by seizing information and
putting that puzzle together.
“And the administration has not only the
right, but the duty, in my opinion, to pursue Fifth Column movements,”
Graham said. “I stand by this President’s ability, inherent to being
Commander in Chief, to find out about Fifth Column movements, and I
don’t think you need a warrant to do that.”
Though the Bush administration has denied abusing its four-year-old
warrantless wiretapping program, it has been unwilling to give details
about the numbers of people swept up in the surveillance or define the
precise criteria for who’s wiretapped.
Bush has insisted that the wiretaps are limited to the international
communications of people in the United States who have gotten calls from
al-Qaeda or its affiliates.
Newspaper investigations, however, indicate the spying is much more
extensive than Bush has admitted. The New York Times and the Washington
Post have reported that the wiretapping by the National Security Agency
has scooped up communications from thousands of innocent Americans. [See
Texan Means Lyin’ Big.”]
Congressional Democrats have called for an investigation to ascertain
the scope of the warrantless wiretaps before addressing the
administration’s assertion that the 1978 Foreign Intelligence
Surveillance Act doesn’t give the nation’s spy agencies the flexibility
But congressional Republicans and the White House torpedoed plans for
an investigation and instead began drafting legislation that would
effectively endorse Bush’s claim to an unfettered right to bypass the
Fourth Amendment’s requirement of a court order before a legal search
can be conducted.
The new legislation, sponsored by Sen. DeWine, would permit the N.S.A.
to intercept international phone calls and e-mails of U.S. residents if
the administration saw “probable cause to believe that one party to the
communication is a member, affiliate, or working in support of a
terrorist group or organization.” [NYT, March 9, 2006]
After 45 days, the law would require the Attorney General to take one
of three steps: end the wiretap, get a warrant from the secret FISA
court, or inform the new oversight panels about the wiretap.
White House spokesman Dana Perino said the administration was willing
to give the new seven-member panels information about the wiretaps but
that the members would be prohibited from divulging what they learn.
[Washington Post, March 9, 2006]
Congressional Democrats have criticized the DeWine plan as
insufficient to prevent violations of civil liberties.
Sen. John D. Rockefeller IV of West Virginia, the ranking Democrat on
the Senate Intelligence Committee, said Congress first needed to
exercise its responsibility to conduct oversight of the Executive
“It is ‘undersight’ when they tell us what they want us to know,”
Rockefeller told the Washington Post. “It’s ‘oversight’ when we know
enough to ask our own questions.”
However, with hard-line Republicans like Senate Intelligence
Committee Chairman Pat Roberts of Kansas joining with more moderate
Republicans like Snowe and Hagel, the Democrats appear to have been
out-flanked and out-muscled again.
A similar process occurred in December 2005 when Congress passed
legislation outlawing cruel, inhuman and degrading treatment of
detainees in U.S. custody. But an amendment, promoted by Graham and
co-sponsored by Sen. Carl Levin, D-Mich., limited legal appeals that
Guantanamo Bay inmates could make in U.S. courts.
Bush administration lawyers have since gone into federal court,
citing the Graham-Levin amendment to prevent Guantanamo detainees from
stopping alleged torture. In other words, the anti-torture law is being
interpreted as granting Bush the sole right to decide how to interpret
its provisions and when to enforce them. [For details, see
Flummoxes Kafka, Orwell.”]
The legislation on warrantless wiretaps now promises to be the next
White House “concession” that will, in reality, consolidate Bush’s
autocratic power in what looks like an inexorable march toward an end of
the American democratic Republic.