Will the Democrats Ever Learn?
A popular Washington saying holds that “politics is about the future, not the past.” Regrettably, that often translates into sweeping serious wrongdoing under the rug in the name of “looking to the future” – a mistake the Democrats appear poised to make again in approving a new wiretapping law.
What infuriates the Democratic “base” and many other Americans about this “compromise” bill is not only that it grants the President powers beyond the narrow technological fixes that were initially cited, but that it sanctions a cover-up of George W. Bush’s past abuses of power.
If the Democratic leaders push through this legislation, with retroactive immunity for the telecommunications companies that aided Bush’s warrantless wiretaps, the one remaining door for discovering the truth about Bush’s program may be slammed shut for good.
Current lawsuits against the telecoms hold out some hope for determining whether the wiretaps were narrowly targeted against genuine foreign terrorist threats, as Bush insists, or involved broad data sweeps against Americans, as some have reported.
Because Bush has wrapped the program in layers of secrecy – and permitted only limited congressional oversight – the House-passed wiretap bill would leave the American people with no way of knowing for sure what happened.
The Democratic leadership – now joined by Sen. Barack Obama – seems more spooked about the risk of getting blamed for another terrorist attack than in finding the truth and protecting the people’s constitutional rights against unreasonable searches and seizures.
In praising the bill, House Speaker Nancy Pelosi – and Obama – have noted that it reaffirms that the President must follow the law and that the secret court created by the Foreign Intelligence Surveillance Act of 1978 must have oversight of all wiretaps.
"The President's illegal program of warrantless surveillance will be over," Obama said in a statement. "It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people."
But critics dismiss those provisions as little more than fig leafs, since the FISA law already was the “exclusive” means for the government to engage in electronic spying.
Nevertheless, Bush relied on right-wing legal theories asserting his unlimited powers in wartime to ignore FISA and to authorize warrantless wiretaps inside the United States of Americans communicating abroad. He then lied to the public about what he was doing.
On April 20, 2004, Bush told a crowd in Buffalo, N.Y., that warrants were still required for all wiretaps.
“By the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” Bush said. “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.”
After the New York Times disclosed the warrantless wiretapping program in December 2005, Bush acknowledged its existence but insisted that the program was “limited” to “taking known al-Qaeda numbers – numbers from known al-Qaeda people – and just trying to find out why the phone calls are being made.”
In his folksy style, he told an audience in Louisville, Kentucky, on Jan. 11, 2006, that “it seems like to me that if somebody is talking to al-Qaeda, we want to know why.”
But the program that Bush described could have been accomplished through warrants under the FISA law, which even lets the government wiretap for 72 hours before going to a secret court for a warrant. Suspicions grew that Bush's wiretaps were more expansive than he was letting on.
In May 2006, USA Today reported that the wiretapping project indeed was much more ambitious, with the National Security Agency seeking to establish a database on phone calls made by tens of millions of Americans.
“It’s the largest database ever assembled in the world,” one person told USA Today. The program’s goal is “to create a database of every call ever made” within the nation's borders, the person said. [USA Today, May 11, 2006]
In reacting to the USA Today’s story, Bush said, “We’re not mining or trolling through the personal lives of millions of innocent Americans.” But Bush didn’t define what standards he was following in determining who to spy on nor whether the data-mining might cover, say, thousands or even hundreds of thousands of people, just not “millions.”
Some of the telecom companies mentioned by USA Today – AT&T, Verizon and BellSouth – disputed parts of the story, leaving widespread uncertainty about whether the Bush administration was engaged in some Orwellian scheme that could be used against political enemies or was simply doing its best to track foreign terrorists.
There are historical reasons to suspect that the administration would be inclined to use such a huge database against its political enemies, as happened in the 1960s and 1970s.
Then, it had become an article of faith for some government officials that the civil rights movement and the anti-Vietnam War protests must have been orchestrated and financed by some international foe of the United States.
Some of the excesses in those investigations, such as the bugging of the Rev. Martin Luther King Jr. and break-ins targeting Pentagon Papers leaker Daniel Ellsberg, led to new laws in the 1970s limiting the power of the Executive.
One of those laws was FISA, which tried to balance the government’s legitimate interest in tracking foreign agents and the citizens’ constitutional right of protection against unreasonable searches.
However, after the Sept. 11, 2001, terror attacks, Bush asserted “plenary” – or unlimited – powers as Commander in Chief and brushed aside legal requirements that the government obtain a warrant through a special FISA court before eavesdropping on phone calls inside the United States.
(There also have been questions raised about whether the origins of the spying program pre-dated 9/11. Court records from the insider-trading trial of former Qwest chief executive Joe Nacchio suggest that the Bush administration’s surveillance plan might have dated back to February 2001.)
Rather than simply letting bygones be bygones, the Democratic-controlled Senate could pair any concessions to the Bush administration on the wiretap bill with a requirement for as full a public disclosure about the spying operation as possible.
One idea surfaced last year when Sen. Arlen Specter, R-Pennsylvania, suggested that the U.S. government take the place of the telecoms in the lawsuits, rather than simply grant blanket immunity.
Another possibility would be a blue-ribbon commission to assess whether the Bush administration abused its authority in spying on Americans, with public hearings and findings published in a formal report that would give the big picture while protecting legitimate secrets.
Instead, the House-passed bill calls for classified and unclassified reports written by the administration's inspectors general and forwarded to Congress a year from now. The limited unclassified version -- presumably giving a sketchy outline of Bush's program -- would then be released to the public.
By then, of course, the bill supported by the Democratic leadership – and the party’s presumptive presidential nominee, Sen. Obama – would have long since let Bush and the telecom companies off the hook.
If that happens, the precedent set could be that Presidents can do whatever they want and then finesse the consequences, escaping any real accountability. Bush’s presidential hubris would have triumphed once more.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
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