By: S. Rowan Wolf, PhD
Uncommon Thought Journal January 7, 2006
I was listening to folks calling in to Washington Journal this morning, and I must admit that I was stunned. I listened for about a half hour as person after person called in to support Bush. I must say that the characterization of this presidency left me with grave concerns. The general tenor was that the democrats were digging up one "little thing" after another to "smear" Bush with. The minimization of the egregious actions of the administration floored me.
At the top of the list was a 28-year-old man from Florida who said that nobody cared about the government "eavesdropping" on Americans. It was the tone in this man's voice that triggered a large concern about characterizing Bush's authorizing broad scale, indiscriminate, spying on people as "eavesdropping."
My guess is that most people who speak American English have certain associations with the word "eavesdropping."
At the light end of the spectrum is inadvertently overhearing someone else's conversation. At the other end is deliberately sneaking around to overhear someone's conversation. What comes to mind is a child hiding outside her or his parent's bedroom while they talk about what presents to get the kid for her/his birthday. Of course, "eavesdropping" may take on a somewhat more ominous meaning when someone "listens in" with hostile intent. Regardless, I think that most people take that word to me something pretty innocuous.
I did a google news search on "bush eavesdrop." What came back surprised me. Sources across the spectrum from "liberal" to "conservative" were using "eavesdropping" to characterized Bush's actions.
When Bush authorized the NSA to engage in spying on people without a warrant he went far beyond "eavesdropping." His program (which still continues today as far as I can tell) was non-specific wiretapping and data mining of massive amounts of electronic communication. It did not just target "suspected terrorists."
The operation was the deployment of NSA technology at a number (unspecified) of U.S. communications switching stations. As I understand it, everything that went through those hubs was captured. The spying was done without any form of oversight by Congress or the courts. It was done without any warrant whatsoever. The data was processed against other databases and passed on to other government intelligence and legal agencies. Now the questions arise as to whether whatever "suspected terrorists" were apprehended must be released.
Why? It is the "fruit of a poison tree" issue, and whether all evidence used was accessible to defense attorneys. As the program was secret, it is clear that not only was any evidence from the NSA spying excluded, the existence of the program was excluded as well. Risen and Lichtblau explore in their article Defense Lawyers in Terror Cases Plan Challenges Over Spy Efforts.
But let's go back to the issue at hand. How many people in the United States do not see their privacy as an issue? How many do not care about Constitutional protections of their freedom? I have a feeling, that many have no idea why the Constitution, and law, stands between the abuses of government and their lives. I don't know whether they trust government that much, or whether they do not see the consequences of the loss of privacy (from wiretapping, to surveillance, to covert searches of their property), or that they see themselves as immune from any of these violations. Perhaps it is some combination of those, or something else entirely. Regardless, it does not bode well for the United States.
Perhaps people really don't see the personal and national risks of the course Bush has taken. Perhaps they don't see how information about them, in their normal daily lives, might be taken out of context to land them in hot water. Maybe they don't see how their child checking the out Kevin Phillips American Dynasty might bring additional scrutiny to their daily lives. Or maybe they don't realize how calling Great Aunt Mimi in France might find them under surveillance. Or even a broader stretch that a friend of a friend showed up at a peace rally and how that swept them into the net. Or the awful truth - that most of the abridgements of our Constitutional protections have been in the "war on drugs," not the "war on terror."
Perhaps they cannot extrapolate how people's concern about how actions and interests in their daily lives may place them under scrutiny, and therefore they circumscribe their lives to fit what they think is a "safe" profile. They watch what internet sites they visit.
They do not engage in any kind of dialogue that might be considered "unpatriotic." They do not give their opinion, and they avoid anyone they think might remotely place them under the microscope. Perhaps they do not understand how fundamental the right to privacy is, and how important the protection from its abuse is to a "free" country. Afterall, bad things (like being disappeared) happen other places. Innocent people are not imprisoned here, only in those "unfree" places in the world.
So what's the big deal with massive surveillance activities by the NSA, or the DIA, CIA, FBI, or local police force? Afterall, it's only "eavesdropping," and it only targets the "bad guys."
See also We Can Spy and So We Will
Mass Surveillance Not Legal
By: Rowan Wolf, PhD of Uncommon Thought Journal
January 7, 2006
I am not sure why it is even a question whether the President has the right to spurious surveillance of U.S. citizens, but apparently it is. A report released on January 5, 2005 by the Congressional Research Services, states that Bush likely exceeded his authority in authorizing the NSA to engage in warrantless wiretaps.
At the root of the Bush argument is that he has limitless power as president in a time of war. First, while the scope of presidential authority during war time is broad, but not limitless - and not without oversight. Bush, and administration functionaries and flunkies have consistently made this argument, and within the scope of that assumed power is also a limitless range of what gets defined as "national security." The transcripts of the Cheney energy meetings are one example, and Bush Senior's papers are another.
At the heart of the presidential powers that Bush argues for, is that we are at "war." However, that "war" is an ever shifting chimera called the "war on terrorism." We have been told that there is no specific enemy in this "war," that it is global in reach, and that it will last for generations. If we accept the war on terrorism as a legitimate and legal war, then we are essentially making a dictator out of the presidency no matter who is in office. We are accepting a limitless scope of authority beyond the law, the Constitution, and any Congressional oversight - into perpetuity.
However, the "war on terrorism" is more in the nature of the "war on crime," the "war on drugs," and the "Cold war," than war within a Constitutional context. By this definition, Nixon, Reagan, Kennedy, Johnson, Ford, Bush Sr., and Clinton, could all have legitimately claimed the same powers that George W. Bush lays claim to. All of them were fighting the "Cold War."
If the "war" that Bush claims gives him this power is the war in Iraq, then he proclaimed the end of that war almost two years ago. Troops in Iraq are not at war - they are on a peacekeeping mission. Hence, the Iraq "war" is no more, and if Bush wants to claim war powers, he will need to unilaterally declare war on someone else. Perhaps that is why the preparations seem to be moving towards attacking Iran.
In reading the CRS report, it seems clear that Bush's authorization of domestic wiretapping exceeded both law and the Constitution. The questions remain because it is unknown what the actual scope of the NSA program includes. The concluding paragraph of the CRS report summarizes this:
"From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by "disabling Congress from acting upon the subject." While courts have generally accepted that the President has the power to conduct 141 domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on 142 the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests."
It seems entirely likely that the NSA program was initiated well before "war" was declared, or any possible interpretation of Congress seceding war powers to the President. In fact it may have started as early as October 1, 2001. This is when General Hayden, who was then head of the NSA, said that he had Presidential Authorization to expand the scope of the NSA. Further, the NSA took the fruits of their labors, data mined it, and shared it with other agencies. That has raised further questions about the status of cases where that information may have been used, but not revealed.
News Reports Basis for Spying in U.S. Is Doubted
1/07/06 Report Rebuts Bush on Spying
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