In at least one area, President Bush is on the run and Congress should run him to ground.
The issue, which should be of concern to Democrats, Republicans and independents alike, is illegal spying on Americans by the National Security Agency.
Back in 2005, the New York Times (after unconscionably holding the story for a full year) exposed the fact that Bush, in late 2001, had authorized the NSA to illegally begin a wide-ranging program of monitoring the phone calls and internet communications of Americans in direct violation of the 1978 Foreign Intelligence Surveillance Act (FISA). That act had been passed by Congress in 1978 precisely because of a similar spying program authorized by President Richard Nixon. It had turned out Nixon was using the NSA illegally to spy on political opponents both outside and inside his own administration.
Last year, a federal judge determined, in a case brought by the American Civil Liberties Union, that Bush’s actions had been illegal, violating both FISA (a felony), and the Fourth Amendment of the U.S. Constitution.
Civil Libertarians both among the public at large and in Congress, have been up in arms ever since disclosure of the Bush spying, both because of its clear affront to the rule of law, and because no explanations for it put forward by the administration made any sense. Bush and his legal advisers at the White House and in the Justice Department have been claiming for nearly two years that they “had to” violate FISA because of a supposed need to monitor suspected terrorists, but critics rightly point out that the FISA law was designed to make such monitoring easy. Under FISA, there is a special secret court of 12 senior federal judges whose only responsibility is to hear government requests for secret wiretaps. Its top-security-clearance rated members stand ready to act even in the middle of the night, and in fact have only rejected such requests for warrants four times since 1978.
Furthermore, critics note, the FISA law gives law enforcement and NSA wiretappers three days to seek a warrant after they start wiretapping! In other words, there is no issue of timeliness. Under FISA, the administration can start spying, and seek permission retroactively.
This has many people suspecting that what the administration has been doing was not spying on terrorists at all–but rather spying on people it should not have been spying on–people that even the most accommodating FISA judges would not have granted warrants for. Who might these people be? Given the administration’s many comments about how critics of the president are “aiding the terrorists,” they could well be legitimate critics of administration policies like torture or the Iraq War. Given the administration’s paranoid obsession about leaks, they could also be people within the Bush administration. Both such groups were targets of Nixon’s illegal NSA spying, and it seems likely they have also been targets of Bush’s mysterious spying campaign.
In any case, while past efforts to get answers from the administration foundered in a Republican Congress, with the Democrats in control of both houses, it was becoming clear that Bush would be facing hard questioning, possibly including subpoenas of documents and people, by the new Congress.
That prospect has led the administration to change course and announce that it is ceasing the warrantless spying, and will now be adhering to FISA and seeking warrants when it wants to monitor someone’s communications.
Clearly Bush is hoping that the problem will now go away; that the Congress will drop plans to seriously investigate the five-year illegal NSA spying campaign he illegally ordered up. Indeed, the Justice Department has reportedly already gone to the Court of Appeals to request that the federal case finding the spying to be illegal, currently on appeal by the government, be “mooted,” or ruled no longer at issue because of their new decision to operate within the law. No doubt similar arguments will be made to the House and Senate intelligence and justice committees.
Such efforts should be slapped down.
The fact remains that for more than five years, this president willfully violated a federal law. Both the courts and the Congress, as well as the American people, have a right and a duty to know, in clear detail, both what he did and why he did it.
Only a few months ago, the president and his attorney general were insisting that Bush’s illegal spying campaign was absolutely essential in the so-called “War on Terror,” and that the procedures of the FISA law were “too slow and too cumbersome” to do the job. Now, faced with the likelihood of real congressional inquiry, the president and his attorney general are claiming that they can do just fine staying within the law, and getting warrants from the FISA judges.
What do they take us for, idiots?
If, as seems almost certain, the president abused his power and sicced the NSA on American citizens who were not violating the law or involved in terrorism, he should be impeached for the most grave of Constitutional violations.
DAVE LINDORFF is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Lindorff’s newest book is “The Case for Impeachment”,co-authored by Barbara Olshansky.
He can be reached at firstname.lastname@example.org