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Sunday, December 18, 2005
Treason and the American President
Posted by David Peterson at 02:41 PM
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To quote the editorial voice of this morning’s Pittsburgh Post-Gazette ("Big Brother Bush,” Dec. 18):
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The idea that all of this is being done to us in the name of national security doesn’t wash; that is the language of a police state. Those are the unacceptable actions of a police state.
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Yes. They most certainly are.
To repeat the simple, recurring theme of the current regime: The President has chosen the weekend of December 17-18, 2005---dates which ought to live in infamy---to instruct us that it is the belief of his regime that the United States is a tyranny. And that within this tyranny, the Tyrant is The Law.
In other words, the current regime has grown so brazen and so desperate that, already having declared war against the rest of the world, it now openly declares war against the U.S. Constitution as well as the citizens of the United States of America.
Neither are these the misdemeanors of a President’s lies under oath in response to salacious inquiries about his relations with women other than his wife. Nor the super-perverse trivia of 24-hour-a-day stories about semen-stained blue dresses and the impeachment of a previous President. Both topics about which the Americans can always count on the vigilance of their news media to keep them titillated and malformed.
But, rather, the bona fide high crimes of the usurpation of legitimate power.
Name them: Crimes against the Constitution. Crimes against the State. Crimes against the People.
In a word: Treason. At the very top, no less. There is no other way to describe.
So, President Bush and his associates are guilty of treason. But---who’s going to arrest them?
They continue to act with complete impunity. And at every turn, laugh at us. Scornfully. And with the utmost contempt.
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FYA ("For your archives"): With this weekend’s proclamations by the American President that what every honest person suspected all along is in fact the case breaking faster than the print media can keep up with, I’ve decided to post here copies of editorials from this Sunday morning’s newspapers, the weblinks to which will all cease to work---some sooner, some later. More will follow. As the Tyrant in Chief is scheduled to take to American television this very evening, and heap even more timber upon this already burning crisis of legitimacy.
Just remember one elemental point: For a crisis of legitimacy to become fullblown and cause the kind of consequences that are historically meaningful, the public needs to be able to think about it through a moral and intellectual framework that is adequate to the actual crisis in front of them. Above all, this means that daily news reporting and commentary need to call the Executive Branch’s violations of the U.S. Constitution and international law, as well as the kind of illegal assaults on its own citizenry that we find in the revelations of various “secret programs” such as the Pentagon’s Threat and Local Observation Notice database, exactly what they are---with sufficient gravitas, and without equivocation. After all, insofar as the American political system is concerned, we are talking about nothing less than everything here. Nor will inane capitulations about the alleged “line between liberty and security,” about whether this line may have “shifted after the 9/11 attacks,” and about whether, in case it really did, “precisely how far,” help the public see the crisis for what it is.
As always, Americans are living in the middle of an enduring crisis of legitimacy. Or, rather, crises. In their way of life. In how they govern their country. In how they attempt to rule the world.
Either they can seize the day. Or they can sleep right through it.
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Newsday (New York)
December 17, 2005 Saturday
ALL EDITIONS
SECTION: OPINION; Pg. A24
HEADLINE: U.S. plays ‘I Spy’;
Unauthorized eavesdropping in U.S. must be stopped
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George W. Bush’s decision to authorize intelligence agents to electronically eavesdrop on people in the United States without court-approved warrants is a stunning example of the president’s apparent disdain for the rights of ordinary people, the Constitution and the rule of law.
According to the New York Times, starting in 2002 Bush turned the National Security Agency loose to monitor the international phone calls and e-mail of hundreds, perhaps thousands of people in this country. The president’s green light marked a profound shift in the intelligence-gathering practices of the NSA, which has traditionally operated abroad. It was also almost certainly illegal and unconstitutional. Such snooping must be stopped.
The White House, tellingly, has not challenged the Times’ account. Officials have instead attempted to justify the eavesdropping, citing the need to move quickly in the war on terror, while insisting that Bush would never order anything illegal.
That rings hollow coming from an administration under fire for abusing detainees and trying to legally redefine torture while insisting it would never torture anyone. It is an administration that placed itself above the law in claiming the power to indefinitely lock up American citizens whom it labeled enemy combatants, without criminal charges, legal representation or a day in court. It is an administration dogged by accusations of ghost detainees, secret prisons and delivering detainees for interrogation in countries known to use torture.
There are people in the world who would like nothing better than to do the United States harm. Washington should work overtime to uncover those plotters and their plots. But that does not justify the NSA’s disturbingly un-American violation of the right to privacy.
It was just that kind of unchecked spying on Vietnam War protesters and civil rights activists in the 1970s that prompted Congress to establish the secretive Foreign Intelligence Surveillance Court, which provides a legal, regulated avenue for such monitoring. Intelligence operatives, usually from the FBI, have only to show probable cause to believe that a person is an agent of a foreign power or an international terrorist group to get a warrant to monitor their communications.
The court is readily accessible, able to respond quickly and has granted thousands of warrants over the years. It has, in fact, almost never refused a request. There was no need for an end run around the court and no justification for skirting the law.
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The Oregonian (Portland, Oregon)
December 17, 2005 Saturday
Sunrise Edition
SECTION: Editorial; Pg. B04
HEADLINE: No eavesdropping without checks, balances
SUMMARY: Bush goes too far in authorizing federal agents to monitor people in America without getting warrants
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The terrorist attacks on Sept. 11, 2001, did not leave the United States so weakened and threatened that it became necessary for the government to take away some of Americans’ cherished rights.
That, however, is essentially the position President Bush took in secretly authorizing the National Security Agency to eavesdrop on people in this country, including U.S. citizens. According to Friday’s explosive disclosures in The New York Times, the president signed an order in 2002 allowing the super-secret agency to monitor the electronic communications of hundreds, perhaps thousands, of people inside the United States, and to do so without the court-approved warrants normally required for domestic spying.
These revelations ignited a firestorm of congressional reaction and bolstered the Senate’s refusal Friday to reauthorize major portions of the USA Patriot Act. Critics of the bill, who include Sen. Ron Wyden, D-Ore., correctly complain that it intrudes excessively on Americans’ privacy and needs more civil liberties safeguards.
The bombshell report about NSA eavesdropping supports that argument. The Times said Bush based his secret order on classified legal opinions maintaining that Congress granted the president such sweeping powers following the 9/11 attacks.
That comes as news to many in Congress. Sen. Russell Feingold, D-Wis., who helped lead the move against Patriot Act renewal, said the NSA revelation “ought to send a chill down the spine of every senator and every American.”
He might well have added that Americans should want U.S. intelligence agencies to gather the evidence they need to protect the nation from terrorists. But that gathering must be done under our system of checks and balances.
No court-ordered warrants for NSA eavesdropping on American soil? If that isn’t unconstitutional, it’s still an appalling idea.
Administration officials counter that anti-terrorism investigators sometimes need to move so fast that there’s no time to work through the Foreign Intelligence Surveillance Court, the secret court that handles national security matters. That’s a dubious claim, but even if it is accurate in some cases, it’s hard to believe the best minds in Washington can’t think of a way to speed-dial the consideration of emergency warrants.
The Times’ story also created controversy over whether the NSA, whose mission involves international intelligence, has any business eavesdropping in the United States. Given the nature of global terrorist activity, and the links it has in places such as Portland, a limited domestic role for the agency may be appropriate.
A secondary issue of more concern is why we first learned of this NSA activity from a newspaper and not from Congress. Its intelligence committees have a role in overseeing such operations. Little public evidence exists to suggest they lived up to their responsibilities in this case.
While this case did not grow directly from the Patriot Act, Friday’s Senate decision to block the law’s renewal underlines the serious implications of this debate. Security is of prime importance to the nation, but we cannot achieve it by leaving executive power unfettered by constitutional checks and balances.
Friday, Attorney General Alberto Gonzales refused to confirm the NSA story, but he gave a dark warning: “We are dealing with a patient, diabolical enemy who wants to harm America.”
Yes, we are. But if we cower, and give up key protections of our liberty, this enemy has succeeded.
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Los Angeles Times
December 18, 2005 Sunday
Home Edition
SECTION: CURRENT; Editorial Pages Desk; Part M; Pg. 4
HEADLINE: Bigger brother
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PRESIDENT BUSH WAS CAVALIER on Friday night when he told Jim Lehrer on PBS that a report about the National Security Agency eavesdropping on U.S. citizens was “not the main story of the day.” He is entitled to his own news judgment, but it reveals a lot about his willingness to disregard constitutional safeguards and civil liberties while pursuing the war on terrorism. To the rest of us, the revelation in the New York Times that the National Security Agency has been eavesdropping on people within the United States without judicial warrants was stunning. In one of the more egregious cases of governmental overreach in the aftermath of 9/11, Bush secretly authorized the monitoring, without any judicial oversight, of international phone calls and e-mail messages from the United States.
The news came on the same day that Congress voted not to extend controversial aspects of the soon-to-expire Patriot Act, and on the heels of disturbing reports that the Pentagon’s shadowy Counterintelligence Field Activity office has been keeping tabs on domestic antiwar groups, including monitoring Quaker meetings, under the guise of protecting military installations. The program is reminiscent of official efforts to spy on antiwar groups in the 1960s.
The scandalous abuse of Americans’ civil liberties in that period led in the 1970s to a new set of laws aimed at curtailing domestic espionage by intelligence agencies. To balance national security needs with our constitutional liberties, the Foreign Intelligence Surveillance Act created secret “FISA” courts in which the Federal Bureau of Investigation and other federal agencies can covertly obtain warrants to eavesdrop on suspected spies (now terrorists too) in the United States. These courts are generally efficient and deferential to the government. Yet the Bush administration still opted to cut them out of the process in some cases; warrants are still sought to intercept all communications that took place entirely within the United States.
Some critics say the FISA courts are too slow to issue decisions in an environment in which every minute counts, and that Cold War laws are ill-suited for a war on amorphous terrorist cells. If that’s the case, the administration and Congress should have worked together to alter the courts’ procedures or to amend the law. Instead, the White House unilaterally opted to exempt much of its antiterrorism efforts from any kind of judicial oversight—just as it tried doing with its policies regarding detainees.
The Supreme Court has already reined in the executive branch on that score, and the NSA’s eavesdropping, arguably a violation of both the law and the Constitution, may lead to even greater legal woes for the president. Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, called reports of the NSA practices clearly unacceptable and said he would hold hearings early next year. There will be plenty to ask about.
One early defense of the program is a claim by the administration that it had to be implemented quietly—the president authorized it in a classified order—because otherwise terrorists would be alerted to its existence and work to evade it. But those same suspected terrorists would have already known that they might be wiretapped with the aid of a secret warrant. What is the difference?
Last week may come to be seen as a tipping point in the public’s attitude, one that will cause the administration to reverse its encroachment on rights in the name of security. The report of the NSA’s unsupervised eavesdropping program helped defeat an extension of certain controversial provisions of the Patriot Act in the Senate on Friday.
Now even sympathetic lawmakers can be expected to view the Patriot Act more skeptically. The revelations about the NSA raise two fundamental questions about the administration’s rationale for increased powers: If it’s already spying on its own citizens, then why does it need the Patriot Act? Alternatively, if it’s already spying on its own citizens, how can it be trusted with the Patriot Act? This administration has yet to fully acknowledge that with greater powers must come greater accountability.
As for the Defense Department’s counterterrorism database, the Pentagon was forced on Thursday to acknowledge that it hadn’t followed its own guidelines requiring the deletion of information on American citizens who clearly don’t pose a security risk. Imagine that: a domestic military intelligence program that failed to abide by its own safeguards.
Given this administration’s history, none of these developments is especially surprising. But the latest revelations may serve as a timely reminder of why the American constitutional system requires the judiciary—the third branch of government—to review the actions of the executive branch when necessary to protect the people’s liberty.
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The New York Times
December 18, 2005 Sunday
Late Edition - Final
SECTION: Section 4; Column 1; Editorial Desk; Pg. 11
HEADLINE: This Call May Be Monitored
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On Oct. 17, 2002, the head of the National Security Agency, Lt. Gen. Michael Hayden, made an eloquent plea to a joint House-Senate inquiry on intelligence for a sober national discussion about whether the line between liberty and security should be shifted after the 9/11 attacks, and if so, precisely how far. He reminded the lawmakers that the rules against his agency’s spying on Americans, carefully written decades earlier, were based on protecting fundamental constitutional rights.
If they were to be changed, General Hayden said, ‘’We need to get it right. We have to find the right balance between protecting our security and protecting our liberty.’’ General Hayden spoke of having a ‘’national dialogue’’ and added: ‘’What I really need you to do is talk to your constituents and find out where the American people want that line between security and liberty to be.’’
General Hayden was right. The mass murders of 9/11 revealed deadly gaps in United States intelligence that needed to be closed. Most of those involved failure of performance, not legal barriers. Nevertheless, Americans expected some reasonable and carefully measured trade-offs between security and civil liberties. They trusted their elected leaders to follow long-established democratic and legal principles and to make any changes in the light of day. But President Bush had other ideas. He secretly and recklessly expanded the government’s powers in dangerous and unnecessary ways that eroded civil liberties and may also have violated the law.
In Friday’s Times, James Risen and Eric Lichtblau reported that sometime in 2002, President Bush signed a secret executive order scrapping a painfully reached, 25-year-old national consensus: spying on Americans by their government should generally be prohibited, and when it is allowed, it should be regulated and supervised by the courts. The laws and executive orders governing electronic eavesdropping by the intelligence agency were specifically devised to uphold the Fourth Amendment’s prohibition of unreasonable searches and seizures.
But Mr. Bush secretly decided that he was going to allow the agency to spy on American citizens without obtaining a warrant—just as he had earlier decided to scrap the Geneva Conventions, American law and Army regulations when it came to handling prisoners in the war on terror. Indeed, the same Justice Department lawyer, John Yoo, who helped write the twisted memo on legalizing torture, wrote briefs supporting the idea that the president could ignore the law once again when it came to the intelligence agency’s eavesdropping on telephone calls and e-mail messages.
‘’The government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties,’’ he wrote.
Let’s be clear about this: illegal government spying on Americans is a violation of individual liberties, whether conditions are troubled or not. Nobody with a real regard for the rule of law and the Constitution would have difficulty seeing that. The law governing the National Security Agency was written after the Vietnam War because the government had made lists of people it considered national security threats and spied on them. All the same empty points about effective intelligence gathering were offered then, just as they are now, and the Congress, the courts and the American people rejected them.
This particular end run around civil liberties is also unnecessary. The intelligence agency already had the capacity to read your mail and your e-mail and listen to your telephone conversations. All it had to do was obtain a warrant from a special court created for this purpose. The burden of proof for obtaining a warrant was relaxed a bit after 9/11, but even before the attacks the court hardly ever rejected requests.
The special court can act in hours, but administration officials say that they sometimes need to start monitoring large batches of telephone numbers even faster than that, and that those numbers might include some of American citizens. That is supposed to justify Mr. Bush’s order, and that is nonsense. The existing law already recognizes that American citizens’ communications may be intercepted by chance. It says that those records may be retained and used if they amount to actual foreign intelligence or counterintelligence material. Otherwise, they must be thrown out.
Scott McClellan, the White House spokesman, would neither confirm nor deny the Times article. Instead, he talked about President Bush’s urgent mission to protect Americans and assured everyone that Mr. Bush was following the law. This White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility on that front. Worse, we have learned the hard way that Mr. Bush’s team cannot be trusted to find the boundaries of the law, much less respect them.
Mr. Bush should retract and renounce his secret directive and halt any illegal spying, or Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling.
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Pittsburgh Post-Gazette (Pennsylvania)
December 18, 2005 Sunday
REGION EDITION
SECTION: Pg. J-6
HEADLINE: BIG BROTHER BUSH THE PRESIDENT TOOK A STEP TOWARD A POLICE STATE
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The Bush administration is continuing its assault on Americans’ privacy and freedom in the name of the war on terrorism.
First, in 2002, according to extensive reporting in The New York Times on Friday, it secretly authorized the National Security Agency to intercept and keep records of Americans’ international phone and e-mail messages without benefit of a previously required court order. Second, it has permitted the Department of Defense to get away with not destroying after three months, as required, records of American Iraq war protesters in the Pentagon’s Threat and Local Observation Notice, or TALON, database.
Both practices mean that a government agency is maintaining information on Americans, reminiscent of the Johnson and Nixon administrations’ approach to Vietnam War protesters. The existence of those records should be seen against a background of the Bush administration’s response to criticism of the Iraq war by retired Ambassador Joseph C. Wilson. His wife’s career at the CIA was ended in revenge for an article he wrote unmasking a dodgy piece of intelligence that President Bush had used in a State of the Union message to seek to support his decision to go to war.
It appears that the phone and e-mail messages of thousands of Americans and foreigners resident in America have been or are being monitored and recorded by the NSA. Such action is not supposed to be taken without an application to and an order approved by the Foreign Intelligence Surveillance Court. Mr. Bush issued an executive order in 2002, months after the Sept. 11, 2001, attack, removing—secretly—that legal safeguard of Americans’ privacy and civil rights.
The Pentagon’s action as part of TALON will be put forward as an oversight, but the idea of the Department of Defense maintaining files on American war protesters, perhaps with easy cross-reference to the NSA’s records based on the results of their monitoring of phone calls and e-mails of potentially those same protesters, makes possible a very serious violation of Americans’ civil rights.
Without a serious leap of imagination, particularly with the list of those under surveillance not available to anyone outside the NSA and the Pentagon, it is also possible to project that political critics of the Bush administration could end up among those being tracked. The Nixon administration, a previous Republican administration beleaguered by war critics, maintained “enemies lists.”
The White House needs to tell the Pentagon promptly to destroy the records of protesters as required, within three months. It also needs promptly to tell the NSA to return to following the rules, to get the approval of the Foreign Intelligence Surveillance Court before monitoring Americans’ communications. The idea that all of this is being done to us in the name of national security doesn’t wash; that is the language of a police state. Those are the unacceptable actions of a police state.
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The Washington Post
December 18, 2005 Sunday
Final Edition
SECTION: Editorial; B06
HEADLINE: Spying on Americans
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IN THE WAKE of the Sept. 11, 2001, attacks, the New York Times reported last week, President Bush authorized the National Security Agency to conduct electronic surveillance of hundreds of U.S. citizens and residents suspected of contact with al Qaeda figures—without warrants and outside the strictures of the law that governs national security searches and wiretaps. The rules here are not ambiguous. Generally speaking, the NSA has not been permitted to operate domestically. And the Foreign Intelligence Surveillance Act (FISA) requires that national security wiretaps be authorized by the secretive FISA court. “A person is guilty of an offense,” the law reads, “if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute”—which appears, at least on its face, to be precisely what the president has authorized.
Mr. Bush, in his weekly radio address yesterday, defended his action, chastised the media for revealing it, and suggested both that Congress had justified this step by authorizing force against al Qaeda and that such spying was consistent with the “constitutional authority vested in me as commander in chief.” But there is a reason the CIA and the NSA are not supposed to operate domestically: The tools of foreign intelligence are not consistent with a democratic society. Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, FISA exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents. Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer—and apparently on a large scale—is gravely dangerous.
Why the administration even deems it necessary remains opaque. Mr. Bush said yesterday said that the program helped address the problem of “terrorists inside the United States . . . communicating with terrorists abroad.” Intelligence officials, the Times reported, grew concerned that going to the FISA court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures—and their computers and files—were captured. But FISA has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA—rather than the FBI, the intelligence component responsible for domestic matters—be doing whatever domestic surveillance needs be done?
As with its infamous torture memorandum, the administration appears to have taken the position that the president is entitled to ignore a clearly worded criminal law when it proves inconvenient in the war on terrorism. That argument is not as outlandish in the case of FISA as it is with respect to the torture laws, since administrations of both parties have always insisted on the executive’s inherent power to conduct national security surveillance. Still, FISA has been the law of the land for 21/2 decades. To disrupt it so fundamentally, in total secret and without seeking legislative authorization, shows a profound disregard for Congress and the laws it passes.
What’s more, Mr. Bush’s general assurances that the program is legal offer no indication of what legal authority, if any, permits this surveillance of what he described as “the international communications of people with known links to al Qaeda and related terrorist organizations.” In the torture context, the administration abandoned the argument that the president could simply disregard laws prohibiting brutal interrogations and moved on to other legal theories. There is reason to think something similar has happened here. Does the administration now claim that warrantless surveillance of hundreds of people by an agency generally barred from domestic spying is consistent with FISA? Does it claim that the congressional authorization to use military force against al Qaeda somehow unties the president’s hands? Other than claiming it has done nothing illegal, the administration is not saying.
Congress must make the administration explain itself. In the aftermath of the revelations, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said hearings on the matter would be a high priority in the coming year. That’s good. It should be unthinkable for Congress to acquiesce to such a fundamental change in the law of domestic surveillance, particularly without a substantive account of what the administration is doing and why.
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