December 19, 2005

Commentary -- It's Good to be the King -- Bush and FISA
This is going to come as quite a surprise, but apparently President Bush has flagrantly violated the law of the land. Before your eyes glaze over and your brain starts to turn off, let me assure you, you actually haven’t heard this one before. This one is a little bit different.

In 2002, Bush signed an Executive Order allowing the National Security Agency to wiretap certain people in the United States who are communicating with someone abroad without obtaining a warrant from a court. Since then, he’s renewed this authorization 36 times, and presumably thousands of people in America have been spied on in this manner.

Now, the NSA is already allowed, in a relatively unrestricted way, to obtain intercepts of electronic communications from everybody else in the world; it is also allowed to do this to Americans, in accordance with the Foreign Intelligence Surveillance Act (FISA). It’s just that the Justice Department needs to go to a special court, the Foreign Intelligence Surveillance Court, in order to get a warrant. To get such a warrant, Justice need not meet convention probable cause standards that would be required in criminal cases. The FISC approves the vast majority of requests. If the situation is an emergency, the wiretap can be kept in place for up to 72 hours before getting a warrant. Indeed, it’s difficult if not impossible to make the case that this executive order is necessary in order to thwart potential terrorist attacks.

There are two ways in which this latest revelation is somewhat different from previous ones.

First, in their open, gung-ho defense of this decision, the administration is somewhere between Nixon’s constant assertion of extreme executive privilege and resurrecting the divine right of kings. Not only can they give no specific justification of the need for indefinitely extended warrantless searches, they can give no real argument about how Bush can simply order a federal agency to commit acts in gross violation of the Foreign Intelligence Surveillance Act and thus of U.S. statute. There are some vague claims about how Congress’s authorization of the use of force on September 14, 2001 is the basis for this authority, but it’s rather hard to read into that document a statement that Bush has the right to set aside any existing legislation by executive decree in the fight against terrorism.

So, in fact, the essence of the argument is that the president, by virtue of his office, can decide whether he believes a law passed by Congress is unconstitutional or not and if it is he can direct agents of the government to violate it. This is equivalent to saying that the president is above the law and is empowered to rule by decree. As Russ Feingold suggested, we have to decide whether we have a president or a king.

Second, Bush has openly admitted to doing this. The administration lied and as much as it could about Iraq’s WMD, but has never admitted anything about it.

When somebody asked me recently whether, in the light of Bush’s increasing unpopularity and increasing perceptions of his dishonesty, there was any chance of impeachment, my answer was no. Crucial to making the case against Nixon for Watergate was his practice of taping Oval Office conversations. The release of those tapes, plus the unexplained 18-minute absence in one of them, was necessary to build the impeachment consensus.

In the case of the much smaller crimes for which Bill Clinton was impeached, again, there was direct physical evidence and he was forced to admit to them.

In Bush’s case, while inferentially there’s been not just a smoking gun but a whole smoking arsenal, there’s been nothing quite as concrete – too much has remained a matter of interpretation, possible to explain or spin away. That’s starting to change.

At the same time, it’s been revealed that the Pentagon frequently spies on antiwar groups; also, under guise of passing an anti-torture bill, Congress has just effectively approved use of testimony obtained by torture to help keep detainees locked up. The outlines of a police state are starting to emerge.

So far, opposition to this particular aspect of what Bush likes to call the advance of freedom has aroused little public opposition, if only because the people directly affected are marginalized groups that no one cares about. That could change if we see the list of people the NSA has spied on.

Impeach Herr Bush !!!