Congress's Orwellian Compromise
A little over a year ago, I wrote an article called “Washington’s Orwellian Consensus,” which faulted Congress for rubberstamping many of George Bush’s sweeping assertions of presidential power, particularly his claimed right to spy on some American citizens without warrants.
The article noted that “the near-term outlook appears to be for a consolidation of George W. Bush’s boundless vision of his own authority” – but added the caveat, “at least until the November elections.”
It now seems that the caveat was not necessary. The implication that a Democratic victory in the 2006 congressional elections might rein in the authoritarian inclinations of the Bush administration appears to have been unfounded.
Despite some attempts at more stringent oversight of the Executive Branch – on issues such as the administration’s no-bid contracts to Halliburton, its politically motivated firing of nine U.S. attorneys, and the mysterious circumstances surrounding the death of football-star-turned-war-hero Pat Tillman – Congress continues to capitulate to the President’s demands for evermore authority on some of the biggest constitutional issues of the day.
The most recent example was the hasty pre-recess passage in the House and Senate of a bill revising the 1978 Foreign Intelligence Surveillance Act (FISA). The “Protect America Act of 2007” amends FISA by lowering the standard by which the President’s subordinates can issue a surveillance order.
The new rules permit the nation’s vast intelligence apparatus to conduct surveillance without a court order against anyone who is “reasonably believed” to be outside the borders of the United States.
“Notwithstanding any other law,” the bill states, “the Director of National Intelligence and the Attorney General may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States.”
The bill’s proponents insist the targets are foreign terrorists. But the word “terrorist” is nowhere in the legislation, whose broad language simply grants the Executive Branch power to spy on communications of anyone “reasonably believed” to be abroad, including calls and e-mails to the United States.
No Judicial Oversight
Former constitutional law litigator Glenn Greenwald noted the significance of the bill’s vague language on C-SPAN’s “Washington Journal.” As Greenwald explained, the law allows the government to “listen to our conversations, read our e-mails, with no connection to terrorism, with no proof that anyone has ever done anything wrong” – with no judicial oversight.
The implication is far-reaching, according to Greenwald. “The government can monitor every single phone call that London is making to you in Washington, D.C.,” he noted. “They can listen to every single international call that you make or receive, every e-mail that you write, and e-mail that you receive, in complete and total secrecy.”
With the Bush administration’s track record of targeting those it considers its political opponents or obstacles to its ideological agenda – most recently demonstrated in its firing of U.S. attorneys deemed insufficiently loyal – it’s baffling that Democrats in Congress would cede such sweeping new powers.
It’s especially curious since Attorney General Alberto Gonzales is under fire for potentially committing perjury in congressional testimony relating to National Security Agency’s surveillance activities.
Gonzales testified to the Senate Judiciary Committee that there was no significant internal disagreement about the legality of the surveillance program undertaken by the NSA. But former Deputy Attorney General James Comey and FBI Director Robert Mueller recounted high-level threats to resign over the project’s legality. Senior senators questioned Gonzales’s truthfulness.
In an Aug. 1 letter to senior committee members, Gonzales acknowledged that he had parsed his words narrowly.
“I recognize that the use of the term Terrorist Surveillance Program and my shorthand reference to the ‘program’ publicly ‘described by the President’ may have created confusion, particularly for those who are knowledgeable about the NSA activities authorized by the presidential order,” he wrote.
A day earlier, Director of National Intelligence Mike McConnell made a similar point in a letter to Sen. Arlen Specter, R-Pennsylvania. McConnell wrote that after the 9/11 attacks, Bush signed a single executive order which authorized “a number of … intelligence activities.”
Defending Gonzales from perjury accusations, McConnell revealed that, in administration jargon, the Terrorist Surveillance Program is only “one particular aspect of these activities, and nothing more.” [Washington Post, Aug. 1, 2007]
The implication – which seemed to be lost on congressional Democrats – was that there were other still-secret NSA surveillance activities.
Nevertheless, despite Gonzales’s credibility at an all-time low, Democrats seem to have been swayed by McConnell, so much so that they allowed the new wiretapping bill to speed through to passage largely on the DNI’s assurances about its necessity -- and fear of being called "soft on terror."
But much of McConnell’s perceived credibility may be unwarranted. At his confirmation hearings last February, a month after the Democrats took control of Congress, he wasn’t pressed on his professional ethics or views on individual privacy, instead facing a generally friendly and polite Senate Select Committee on Intelligence.
Chairman Jay Rockefeller said McConnell’s “testimony has given me an enormous sense of hope and confidence” in his ability to do the job. The West Virginia Democrat added, “You have precisely the personality” needed to be an effective DNI.
Little attention was given to McConnell’s background as a private consultant with Booz Allen Hamilton, where he earned $2 million a year working for some of the same intelligence officials he would supervise as DNI.
Booz Allen also participated in development of the controversial Total Information Awareness data-mining program, which was revealed in 2002 and supposedly was shut down in 2003. But McConnell faced only one question regarding his company’s role in that controversial project, from Sen. Ron Wyden, D-Oregon.
Devised by the Pentagon’s Defense Advanced Research Projects Agency, Total Information Awareness 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. The Bush administration put retired Admiral John Poindexter in charge of the sensitive project despite his five felony convictions in the Iran-Contra Affair (though a conservative-dominated appeals court later reversed the jury verdicts).
Although public outrage and congressional opposition supposedly killed the TIA program in 2003, the National Journal revealed in February 2006 that the project was ended in name only, kept alive within NSA’s secret budget.
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 TIA.
Another part of TIA, called Genoa II, was shifted to NSA and re-titled “Topsail.” It builds information technologies to anticipate and pre-empt terrorist attacks.
Meanwhile, the NSA’s own data-mining program seeks to construct the largest database in the world, according to a report by USA Today. It ultimately would store the records of every phone call made in the United States and apply “social network” models to the calling patterns of Americans supposedly to match them up with patterns of known terrorists.
When asked about Booz Allen’s contract work on the earlier TIA project, McConnell responded by saying that his advice had been that information should be used only if it adhered to the Constitution and current laws and values. No other senator pursued this line of inquiry.
In giving McConnell a pass, the senators missed a unique opportunity to explore exactly which of these programs Booz Allen participated in, and to what extent. The senators also failed to pin down McConnell on precisely what his views were on individual privacy and civil liberties.
Further, by waving McConnell through the committee, and then confirming him in the full Democratic-controlled Senate, the senators sent a clear signal that they were willing to overlook civil liberties concerns and continue granting Bush the authority he desired for conducting surveillance on the American people.
Now, by authorizing the DNI and Attorney General to issue warrantless surveillance orders against anyone “reasonably believed” to be outside U.S. borders, Congress has again given its tacit approval to widespread surveillance activities that infringe on the privacy rights of Americans and foreigners alike.
Since creation of the DNI post in early 2005, its independence has been in doubt. In calling on Congress to create the position in 2004, Bush made clear that the director would serve “at the pleasure of the President.”
Yet, despite McConnell's dependence on Bush for continued employment, the Democratic-controlled Congress again has expanded the DNI’s authority.
The Intelligence Authorization Act of 2007, for instance, provided the DNI “access to all national intelligence … concerning the human intelligence operations of any element of the intelligence community” and authorized DNI-chosen personnel “to make arrests without warrant for any offense against the United States committed in the presence of such personnel.”
History of Abuse
Creating the post of DNI required extensive revision of the 1947 National Security Act, which established the Central Intelligence Agency and the National Security Council. These new government entities set in motion decades of a foreign policy characterized by a global effort to undermine and contain the spread of communism around the world.
Also in 1947, President Harry S. Truman issued Executive Order 9835, known as the Loyalty Order, initiating a campaign to stamp out any “infiltration of disloyal persons” in the U.S. government, specifically communists and communist sympathizers.
An internal security campaign was subsequently launched in which 6.6 million Americans would be investigated. Although no cases of espionage were uncovered in the ensuing five years, about 500 Americans were identified as subversives with “questionable loyalty.”
Thousands more became the target of aggressive investigations and questioning before government or private-industry panels, including the Senate Internal Security Subcommittee, chaired by Sen. Joseph McCarthy, R-Wisconsin. Although many convictions from this period were later overturned, countless innocent people suffered loss of employment, ruined careers, and even imprisonment.
At times, the hysteria reached truly absurd and ironic levels. In an effort to appear more “patriotic,” the State Department began purging its libraries of books that were deemed too radical and subversive, including The Selected Works of Thomas Jefferson.
Despite its aggressiveness in trying to stamp out disloyalty during those early years of the Cold War, the U.S. intelligence community's spying tools were relatively crude. To modernize the government’s electronic spying capabilities, Truman issued a secret presidential directive in 1952 establishing the National Security Agency.
The NSA grew rapidly into a giant intelligence-gathering apparatus, delving ever-deeper into the private lives and communications of Americans.
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 movements for peace and racial equality through a Cold War prism, using terms like “subversive activity” to describe civil rights activism.
Considered security threats, Dr. Martin Luther King Jr. and other civil rights and antiwar leaders were subjected to unlawful surveillance, with the information gathered then used to undermine their work.
After some abuses came to light in the 1970s, Sen. Frank Church, D-Idaho, began holding hearings to investigate the conduct of intelligence agencies including the NSA and FBI. At the end of the investigation, Church cautioned against the potential for abuse when the NSA targeted 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]
These concerns led to enactment of the 1978 Foreign Intelligence Surveillance Act and other limits on intelligence gathering inside the United States. After the 9/11 attacks, however, many safeguards were voided by the USA Patriot Act of 2001 or were cast aside by unilateral actions of the Bush administration.
In 2002, Attorney General John Ashcroft loosened restrictions that had been placed on the FBI after the COINTELPRO political-spying scandal of the 1970s.
Under the new Ashcroft guidelines, the FBI must have only a reasonable indication that “two or more persons are engaged in an enterprise for the purpose of … furthering political or social goals wholly or in part through activities that involve force or violence and a violation of federal criminal law.”
The investigation need not be approved by FBI headquarters, but rather, may be authorized by a special agent in charge of an FBI field office.
Civil libertarians noted the potential for abuse, especially considering the extraordinarily vague definition of “terrorism” as laid out under the Patriot Act. Section 802 of that law broadly 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.
One early indication of how the government might use its expanded powers came in 2003, when the FBI sent a memorandum to local law enforcement agencies before planned demonstrations against the war in Iraq. The memo detailed protesters’ tactics and analyzed activities such as the recruitment of protesters over the Internet.
The FBI instructed local law enforcement agencies to be on the lookout for “possible indicators of protest activity and report any potentially illegal acts to the nearest FBI Joint Terrorism Task Force.”
Despite growing concerns about erosion of civil liberties, the Democratic-controlled Congress allowed the “Protect America Act of 2007” to be rushed through to passage on the weekend before its August recess.
The law further undercuts the reforms of the 1970s, most significantly by lifting the requirement for a warrant before surveillance of communications that involve at least one person on American soil.
But the worst potential for abuse may lie ahead, as the government amasses a growing arsenal of capabilities that can pry into the most intimate details of a person’s private life.
With Bush calling the so-called “war on terror” the “decisive ideological conflict of our time” and drawing parallels between Osama bin Laden and V.I. Lenin, the overriding question is whether the United States is in store for a replay of Cold War paranoia, except this time with 21st century technology that Joe McCarthy never could have imagined.
By helping to eliminate more of the intelligence reforms of the 1970s, the Democratic-controlled Congress has now made itself a full partner in what looks like a new round of abuses aimed at the constitutional protections of the American people.
Nat Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush, which can be ordered at neckdeepbook.com. His e-mail address is firstname.lastname@example.org.
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