June 2, 2006
disclosures about government spying on Americans and a flurry of
interest in the erosion of U.S. constitutional rights, the near-term
outlook appears to be for a consolidation of George W. Bush’s boundless
vision of his own authority – at least until the November elections.
None of the promised investigations into Bush’s
alleged abuses has made much progress, as the traditional checks and
balances of the Republic – the press, Congress and the Judiciary – have
either backed away or looked helpless in the face of Bush’s grab for
more and more power.
In frustrating a few hesitant challenges to his
so-called “plenary” – or unlimited – powers as Commander in Chief, Bush
has insisted that only he can decide how to enforce laws, what reality
is and when release of information endangers the national security.
Even as his popularity wanes and his poll numbers
sink into the low 30s, Bush has continued to wield a powerful trump
card: his claim of total control over government secrets. Using that
power, Bush has fended off Congress, scared the press and even thwarted
investigators in his own administration.
For instance, in early May, the National Security
Agency – with Bush’s implied blessing – blocked an internal Justice
Department investigation into the role of department lawyers in
structuring the NSA’s warrantless wiretapping of American phone calls.
The NSA killed the investigation simply by refusing
to grant security clearances to lawyers from the department’s relatively
independent Office of Professional Responsibility, which was heading up
the internal inquiry.
“We have been unable to make any meaningful
progress in our investigation because OPR has been denied security
clearances for access to information about the NSA program,” OPR counsel
H. Marshall Jarrett wrote to Congress on May 10.
Bush could have countermanded the NSA’s order,
since he asserts ultimate control over all classification matters, but
he didn’t – leading to the obvious conclusion that neither he nor
Attorney General Alberto Gonzales wanted an independent review of the
legal theories behind the NSA’s domestic spying.
The Bush administration cited secrecy again in
demanding that federal judges in New York and Michigan throw out
lawsuits over the NSA’s domestic spying, because Bush’s lawyers say
litigating the suits might reveal state secrets to terrorists.
But Shayana Kadidal, an attorney for the Center for
Constitutional Rights, says the case could be conducted with careful
safeguards put in place to prevent release of sensitive information.
“The Bush administration is trying to crush a very
strong case against domestic spying without any evidence or argument,”
Kadidal said. “Can the President tell the courts which cases they can
rule on? If so, the courts will never be able to hold the President
accountable for breaking the law.” [MSNBC,
May 27, 2006]
By making blanket demands for secrecy, the Bush
administration also has buffaloed Congress in its halfhearted efforts to
conduct some oversight of the spying operations. The few members of
Congress who got limited briefings on the NSA domestic programs were
then muzzled so they couldn’t discuss any of their concerns publicly.
Rather than challenge the administration’s domain
over all secrets – and its dubious argument that al-Qaeda terrorists
otherwise wouldn’t suspect their phones might be tapped – the Congress
meekly went along.
When Bush nominated a key architect of the spying
program – former NSA director Michael Hayden – to become CIA director,
he was waved through after a polite round of hearings and a resounding
78-15 confirmation vote in the U.S. Senate.
The Bush administration also has moved to
intimidate and silence the national news media and government
whistleblowers. In a TV interview on May 21, Attorney General Gonzales
warned that journalists who have written about the NSA spy program
might be prosecuted under 1917 Espionage Act.
“There are some statutes on the book which, if you
read the language carefully, would seem to indicate that that is a
possibility,” Gonzales said in an apparent reference to the Espionage
Act. The law makes it a crime for an unauthorized person to receive
national defense information and pass it on to others – but has never
been applied to journalists.
“It can't be the case that that [First Amendment]
right [barring laws restricting press freedom] trumps over the right
that Americans would like to see, the ability of the federal government
to go after criminal activity,” Gonzales said, apparently referring to
demands from Bush’s ardent supporters that reporters be thrown in jail.
“We have an obligation to enforce the law and to
prosecute those who engage in criminal activity,” Gonzales said.
What Gonzales’s comment suggests, however, is that
the Justice Department is combing through little-used or antiquated laws
and developing novel interpretations of the language to let the
administration threaten prosecution against people who interfere with
Bush’s exercise of his unlimited “war powers.”
Just as Bush has asserted in hundreds of “signing
statements” his right to ignore laws that he doesn’t like, he is now
creating legal theories to criminalize virtually any action that he
considers a threat to his authority under his malleable interpretations
of old laws.
When Gonzales refers to “an obligation to enforce
the law,” what he really means is the right to take action against
critics under “our interpretation of the law.”
Beyond these novel interpretations of old laws, the
Bush administration operates within its own definition of words. They
can be made to mean pretty much whatever Bush wants them to mean, with
an elasticity that can twist words 180 degrees from the truth.
So, for instance, in 2004, more than two years
after approving warrantless wiretaps, Bush assured the American people
that all wiretaps still required a warrant.
“By the way, any time you hear the United States
government talking about wiretap, it requires – a wiretap requires a
court order,” Bush said in
a speech in Buffalo, N.Y., on April 20, 2004. “Nothing has changed,
by the way. When we’re talking about chasing down terrorists, we’re
talking about getting a court order before we do so.”
Bush now offers his promise that the American
people have nothing to fear from these NSA warrantless wiretaps – which
he had previously claimed didn’t exist – nor from a companion program
that’s amassing a database of possibly trillions of phone records from
tens of millions of Americans.
“The privacy of ordinary Americans is fiercely
protected in all our activities,” Bush said. But he didn’t define what
he meant by “ordinary Americans” nor why anyone should believe him after
he has lied so often in the past. [For details on Bush’s lies, see
W. Bush IS a Liar.”]
Whatever the sincerity of Bush’s latest guarantees,
it soon became clear that his promise didn’t cover journalists, who
apparently don’t qualify as “ordinary Americans.”
In mid-May, reporters for ABC News were
warned that their phone calls were being tracked to clamp down on
government leaks and to inhibit further reporting on secret government
“A senior federal law
enforcement official tells us the government is tracking the phone
numbers we call in an effort to root out confidential sources,” wrote
Brian Ross and Richard Esposito in an ABCNews.com blog post on May 15.
“It’s time for you to get
some new cell phones, quick,” the official warned them.
While it’s unclear whether the NSA’s phone call
database was being used, the suggestion that the Bush administration is
tracking ABC’s phone calls sent a chilling message to both journalists
and their sources: their conversations are no longer private and may
become grounds for criminal prosecutions.
Although much about the data-mining program remains
unknown to the American people, USA Today reported that the NSA’s goal
was to construct the largest database in the world, ultimately storing
the records of every phone call made in the United States.
The program apparently intends to apply “social
network” models to the calling patterns of Americans supposedly to match
them up with patterns of known terrorists.
However, given the fact that trained terrorists,
such as the 9/11 hijackers, avoided substantive contacts by phone
because they knew their calls could be intercepted, it’s unclear even to
experts how applying the patterns of the remaining routine calls – often
to a girlfriend or to a realtor – would offer much help in identifying
More likely, the data-mining program would just
overwhelm the FBI with false leads, a process known as “searching for
the needle by adding more hay to the haystack.”
While a dubious benefit to real counter-terrorist
investigations, the NSA’s data-mining does hold a genuine potential for
developing detailed profiles on Americans, especially those who
represent threats to Bush’s authority.
That potential would be enhanced, too, if
phone-calling habits were cross-referenced to other personal information
such as financial transactions and Web-site visits, which was the goal
of an earlier Bush administration initiative called
Total Information Awareness.
That “counter-terrorism project,” devised by the
Pentagon’s Defense Advanced Research Projects Agency, sought to merge
vast bodies of electronic data about almost everyone operating within
the modern economy.
The plan was to map out “transactional data”
collected from every kind of activity – “financial, education, travel,
medical, veterinary, country entry, place/event entry, transportation,
housing, critical resources, government, communications,” according to
the DARPA Web site.
The program would then cross-reference this data
with the “biometric signatures of humans,” data collected on
individuals’ faces, fingerprints, gaits and irises.
boasted a logo that looked like some kind of clip art from George
Orwell’s 1984. It used a Masonic symbol of an all-seeing eye atop
a pyramid peering over the globe, with the slogan, “scientia est
potentia,” Latin for “knowledge is power.”
After the TIA program was revealed in 2002, a
public outcry across the political spectrum led to congressional
action in 2003 to kill the program.
Although the TIA program was believed stopped, the
revealed in February 2006 that the project was ended in name only,
kept alive within NSA’s secret budget. The most important components
were moved from DARPA to the NSA’s Advanced Research and Development
Activity in Fort Meade, Md.
One TIA component, called the
Information Awareness Prototype System, was renamed “Basketball” at
NSA, but still provided the basic architecture tying together
information extraction, analysis and dissemination tools developed under
Another piece of TIA, called
Genoa II, was shifted to NSA and re-titled “Topsail.” It builds
information technologies to anticipate and pre-empt terrorist attacks,
much like the NSA’s reported data-mining program.
In confirming Hayden – the architect of the NSA’s
domestic surveillance program – to head the CIA, it looked to many civil
libertarians as if the Senate was throwing in the towel on a revamped
version of this supposedly defunct Pentagon program, brought back to
life as the NSA’s domestic surveillance and data-mining operations.
Some senators who voted for Hayden said they were
still not comfortable with what was going on at the NSA.
“My confidence in General Hayden should not be
interpreted as confidence in this administration,” said Sen. Barbara A.
Mikulski, D-Md. “This administration sometimes pays lip service to the
law of the land, as we have seen with recent revelations about the
warrantless surveillance program.”
But the confirmation of Hayden follows a long
pattern of the Senate confirming Bush nominees to powerful positions
regardless of their controversial views on presidential power. Samuel
Alito, for example, was confirmed to the U.S. Supreme Court despite his
unorthodox views on the “unitary executive.”
At a Federalist Society symposium in 2001, Judge
Alito recalled that when he was in the Office of Legal Counsel in Ronald
Reagan’s White House, “we were strong proponents of the theory of the
unitary executive, that all federal executive power is vested by the
Constitution in the President.”
In 1986, Alito advanced
this theory by proposing “interpretive signing statements” from
presidents to counter the court’s traditional reliance on congressional
intent in assessing the meaning of federal law. Bush has issued more
750 “signing statements” since 2001, effectively rejecting legal
restrictions especially as they bear on presidential powers. [See
& the Point of No Return.”]
Another controversial figure confirmed by the
Senate despite radical legal views was Attorney General Gonzales. As
White House counsel, Gonzales had devised legal arguments justifying
torture and even
argued that parts of the Geneva Conventions were “quaint” and
An August 2002
memo approved by Gonzales included the opinion that laws prohibiting
torture do “not apply to the President’s detention and interrogation of
enemy combatants.” The memo also offered the opinion that the pain
endured in an interrogation must include “injury such as death, organ
failure, or serious impairment of body functions – in order to
Even with this so-called “torture memo” public,
Gonzales easily won confirmation as the nation’s top law-enforcement
official by a Senate vote of 60-36.
Gonzales’s view of torture, however, was
rebuked in May 2006 by a United Nations panel that criticized the
U.S. detention center at Guantanamo Bay and found that many of the
administration’s interrogation policies violated the Convention Against
Torture treaty, ratified by the United States in 1994.
The U.N. has now joined various human rights groups
in explicitly rejecting the administration’s narrow view of torture and
calling into question Bush’s twisting of legal language to justify
whatever actions he wants to take.
Now, when it comes to the 1917 Espionage Act and
the administration’s interest in prosecuting journalists, Gonzales’s
readiness to apply creative interpretations to laws is relevant again.
Professor Geoffrey Stone, who has
submitted a memo to the House Intelligence Committee, notes that
Congress specifically rejected a version of the World War I-era
Espionage Act that would have made it apply to journalists.
When Congress began the debate in 1917, the
original bill did include a provision that would bar the press in
wartime from publishing information that the President decided was “of
such character that it is or might be useful to the enemy,” Stone said.
But after much heated debate and despite a personal
appeal from President Woodrow Wilson who favored the press ban, the
House of Representatives defeated it by a vote of 184 to 144. This
effectively ended the argument over whether the press should be held
criminally liable for publishing government secrets in wartime, Stone
Stone argues that the resurrected question of
whether the United States should criminally punish the press for
publishing classified information “poses a prospect unprecedented in
American history,” noting that the United States has never had a federal
law explicitly prohibiting the press from divulging government secrets.
“The absence of such legislation is no accident,”
wrote Stone. “It clearly fulfills the promise of the First Amendment:
‘Congress shall make no law . . . abridging the freedom . . . of the
But the Gonzales view that prosecuting journalists
“is a possibility” fits with the Bush administration’s history of
reinterpreting arcane laws to go after critics.
In 2003, Attorney General John Ashcroft’s Justice
Department dusted off an 1872 law against “sailor-mongering” to
prosecute Greenpeace. The case against the environmental organization
followed an attempt by a couple of its members to board a ship
transporting illegally harvested Brazilian mahogany. The protesters
intended to unfurl a banner that read, “President
Bush: Stop Illegal Logging.”
The law that was used against them however was
clearly never intended for environmental activists. Its purpose was
described by an Oregon court in 1890: to prevent “the evil” of
“sailor-mongers [who] get on board vessels and by the help of
intoxicants, and the use of other means, often savoring of violence, get
the crews ashore and leave the vessel without help to manage or care for
Although Greenpeace ultimately prevailed in court,
many civil libertarians noted the potential chilling effect of using the
full weight of the Justice Department to silence a group that opposes
Bush administration policies.
The environmental group came under attack again in
2005 when the IRS launched a months-long audit of the organization for
alleged money laundering and other crimes. The audit was prompted,
according to an IRS auditor, by complaints from a group called Public
Interest Watch, which has been funded almost entirely by Exxon-Mobil.
March 22, 2006]
Greenpeace and other administration critics also
have been investigated by the FBI’s Joint Terrorism Task Force. “The
FBI has in its files 1,173 pages of internal documents on the American
Civil Liberties Union, the leading critic of the Bush administration's
antiterrorism policies, and 2,383 pages on Greenpeace,” the New York
Times reported. [NYT,
July 18, 2005]
Another group singled out by the FBI was United for
Peace and Justice, which has facilitated many of the mass marches
against the war in Iraq, including a demonstration in April that drew
350,000 people in New York. Leslie Cagan, the national coordinator for
the coalition, said she was particularly concerned that the FBI’s
counterterrorism division was examining the coalition’s operations.
“We always assumed the FBI was monitoring us, but
to see the counterterrorism people looking at us like this is pretty
jarring,” Cagan said.
Civil libertarians have pointed out that the Joint
Terrorism Task Force conducting surveillance of legitimate
administration critics has the effect of equating dissent with
terrorism, which is especially troublesome with the broad definition of
“terrorism” in the USA Patriot Act.
Section 802 of the law defines terrorism as acts
that “appear to be intended ... to influence the policy of a government
by intimidation or coercion,” which could include confrontational
protests and civil disobedience.
In the recent renewal process of the Patriot Act,
Congress did attempt to ensure some degree of supervision regarding how
the law is being used. The final version included a measure that
required the President to inform Congress on how the FBI was using the
law’s expanded police powers. But when Bush signed the law in March, he
signing statement, saying he did not feel obliged to comply with
This led Sen. Arlen Specter, R-Pa., chairman of the
Senate Judiciary Committee, to promise hearings on the matter in June.
“There is some need for some oversight by Congress to assert its
authority here,” Specter said. “What’s the point of having a statute if
… the President can cherry-pick what he likes and what he doesn’t like?”
Despite a few stabs at oversight of the Patriot
Act, however, Congress largely gave the administration whatever it
wanted in the reauthorization. Rather than reining in the controversial
law, Congress expanded it while making most of its provisions permanent
and granting new powers to law enforcement agencies.
The new law increases fines and criminal penalties
that the Treasury Department can use to coerce non-profit organizations
and other businesses into checking employees against government
terrorist watch lists, despite concerns that these lists are overly
broad and potentially inaccurate.
The National Counterterrorism Center’s terrorist
watch list now includes more than 325,000 names of terrorism suspects or
people who allegedly aid them. This number has more than quadrupled
since the fall of 2003, and many privacy advocates worry that it
includes an unacceptable number of innocent people. [Washington Post,
Feb. 15, 2006]
There have been many stories of innocent people
finding themselves on the government’s “no-fly” list when they attempt
to board an airplane, including an Iraq veteran who was recently held up
on his trip home from the war.
In April, Marine Staff Sgt. Daniel Brown was
delayed in Los Angeles from boarding a plane home from Iraq because
his name was on the no-fly list as a possible terrorist. In uniform and
returning from the war with 26 other Marines, he was held up because his
name appeared on the list due to a previous incident in which
Transportation Security Administration (TSA) screeners found gunpowder
residue on his boots – likely left over from a prior two-month tour of
Although the no-fly list remains secret, the TSA
concedes that tens of thousands of Americans are on it. The ACLU
suggests that the list’s lack of transparency is problematic: “People
first learn that they are on the lists – or are mistaken for someone on
the lists – when they encounter problems at the airport.”
noted that these sorts of provisions are unrelated to fighting
Islamist terrorism and needlessly infringe on civil liberties.
It could also be said that under the broad
definition of terrorism and the administration’s track record of going
after legitimate political opponents, there is little cause for comfort
when George Bush assures the country that the NSA surveillance is only
being used against suspected terrorists and their associates.
Indeed, the history of the NSA and government
surveillance in general suggests that the temptation to abuse these
powerful programs is so strong that politicians at some point will
succumb and take a bite from that apple.
After being created by a secret presidential
directive in 1952, the NSA rapidly grew into a vast
intelligence-gathering apparatus, delving ever-deeper into Americans'
private lives and communications.
An NSA program called Operation Shamrock
intercepted millions of telegrams to and from the United States. The NSA
placed the names of law-abiding American citizens on “watch lists” and
then disseminated their private communications to other government
agencies such as the FBI and CIA.
Much of the surveillance was conducted on civil
rights and antiwar organizations. In the 1950s and 1960s, the NSA and
other agencies viewed the movements for peace and racial equality
through a Cold War prism, using terms like “subversive activity” to
describe civil rights activism.
Dr. Martin Luther King Jr. and other civil rights
and antiwar leaders were considered security threats by the government
and were subjected to unlawful surveillance, with the information
gathered then used to undermine their work.
The Senate’s Church Committee hearings of the 1970s
investigated the conduct of intelligence agencies including the NSA and
FBI. The findings led to enactment of the 1978 Foreign Intelligence
Surveillance Act and other limits on intelligence gathering.
At the end of the investigation, Sen. Frank Church,
D-Idaho, specifically cautioned against the vast potential for abuse of
the National Security Agency targeted against American citizens.
The NSA’s “capability at any time could be turned around on the
American people,” Church warned, “and no American would have any privacy
left … There would be no place to hide.” [NYT,
Dec. 25, 2005]
Church also warned that if a dictator ever took over the United
States, the NSA “could enable [him] to impose total tyranny, and there
would be no way to fight back.”
That specter has become all too real with the
disclosures of the NSA’s wiretapping program, the collection of phone
records and indications that much more is still being hidden from the
George Bush – who once joked that governing America
would be easier if it were a dictatorship, “so long as I’m the dictator”
– may soon have at his fingertips access to the largest database in the
world, which could be used against anyone, including journalists and
That now appears certain to remain the case at
least until the November elections when the American people will have
perhaps one last chance to register their objection to an Orwellian
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