The Ongoing Battle for Democratic Rights

Stop the Spying on U.S. Citizens by Bush and NSA

by Joe Auciello

If this were a dictatorship, it would be a heck of a lot easier—just as long as I am the dictator.

President George W. Bush, joking to reporters after the 2000 election.

Following the 9/11 attacks, President Bush secretly ordered the National Security Agency (NSA) to wiretap—without a warrant—American citizens who made phone calls or sent e-mails overseas. The president claims that his role as commander-in-chief allows him to authorize these wiretaps without the permission of any court. He claims, further, that a congressional resolution passed shortly after 9/11 which allows the president “to use all necessary and appropriate force” against the attackers provides him with the authority to eavesdrop on Americans who communicate with people overseas.

President Bush’s argument is an ill-disguised and illegal power grab that diminishes the civil liberties of Americans. Bush’s actions to mandate domestic spying violates the Foreign Intelligence Surveillance Act (FISA), a 1978 law passed by Congress after it was revealed that then-President Richard Nixon had improperly ordered the FBI to spy on U.S. citizens, especially those who Nixon considered his political enemies. The law unambiguously states that a judicial warrant “shall be the exclusive means by which electronic surveillance…and the interception of domestic wire and oral communications may be conducted.”

President Bush broke this law. His actions are both illegal and unconstitutional. While claiming that his orders are “crucial to our national security,” Bush committed crimes. Furthermore, in a December 17 radio address from the White House, he announced his intention to continue with his policy of unauthorized domestic spying.

There was no practical necessity for the Bush administration to ignore the courts. The current law allows the White House to obtain secret emergency warrants from the court (created by the FISA) that presides over intelligence operations. In fact, the application of this law has been almost completely favorable to the executive branch of government.

The New York Times reported on Dec. 23: “It is not altogether evident why the government has viewed the FISA court as an obstacle. The annual statistical summary provided by the court shows that the panel has overwhelmingly approved the warrants sought by the Justice Department. From 1995 to 2004, the court received 10, 617 warrant applications, according to figures compiled by the Federation of American Scientists. It turned down only four…”

One point Bush makes, with far more justification, is that his policy was carried out with the knowledge and support of key members of Congress—leaders of the Democratic Party in particular. According to the Dec. 23 Times, “At least seven Democratic lawmakers are known to have been briefed about the program since its inception in 2001,” including top Democrats on the House and Senate Intelligence Committees. Before authorizing the wiretapping and monitoring of conversations, Bush notified the Senate minority leader, Harry Reid (D-Nev.), and the House minority leader, Nancy Pelosi, (D- Calif.). Following the public exposure and public outcry over the NSA’s actions, both Democrats have since tried to distance themselves from the president’s illegal policies.

Senator Reid, for instance, now calls for a Congressional investigation into the president’s actions. Additionally, three Democratic senators have called for an end to the NSA operations pending a hearing in Congress.

The scope of this domestic spying program is not clear. White House officials have not provided information about the number of people being monitored, though initial reports of hundreds seem to fall far short of the actual number.

In addition to NSA spying, the “war on terror” has been the rationale for other federal and local agencies to spy on U.S. citizens. NBC News revealed that the Pentagon has been gathering intelligence on antiwar protesters, compiling a database of 1,500 “suspicious incidents.” Plainclothes police in New York City have been accused of monitoring peace demonstrations and, in at least one instance at the Republican National Convention, inciting a confrontation between protesters and police. (Police spokesmen say the presence of officers out of uniform participating in demonstrations is part of an effort to maintain order and protect the rights of citizens.)

The FBI, in turn, according to documents released by the American Civil Liberties Union, is collecting information on groups and individuals ranging from animal rights and environmental activists to the Catholic Workers Movement, an antipoverty group that, according to the FBI, “advocates a communist distribution of resources.” Naturally enough, FBI spokesmen deny any wrongdoing and claim that their snooping is connected to investigations of suspected terrorists.

What is ignored in the government’s rationalizations is a fundamental principle of democracy: The government has no right to oversee and gather information on legal political activity, even if it is activity aimed against the current administration.

The Bush agenda, which treats civil liberties as a casualty of war, is hardly limited to illegal use of the National Security Agency and other federal agencies. This administration attempts to use the media as an extension of government. The New York Times finally broke the story on Dec. 16, but it withheld this information from publication for a full year, at the urging of the White House. Even then, according to the Times, administration officials were allowed prepublication review of the article, and cuts were made at official request.

The Dec. 24 New York Times reports that the telecommunications industry has been cooperating with federal agencies and providing the government with massive amounts of communications data, allowing the NSA “to obtain backdoor access to streams of domestic and international communications.”

In addition, in a number of significant ways, government policies and practices have eroded civil liberties at home and abroad. The USA Patriot Act, initially approved with near unanimity by Congress, increases the scope of legal eavesdropping and allows government agents to obtain bank and hospital records and other personal documents, including information from businesses and libraries about book purchases, book lending, and internet use. The law enables the attorney general to authorize wiretaps before a judge has issued a warrant, if federal agents later present evidence in court.

Further, the Bush government has tried to undermine long-standing international agreements by claiming that Afghanistan war prisoners held by the U.S. at its Guantanamo Bay military base in Cuba are enemy combatants and are not allowed the rights given them under the Geneva Conventions. Bush has also claimed that his authority as commander-in-chief allows him to order the arrest and imprisonment of U.S. citizens without trial if they are suspected of having links to terrorists. And the Bush administration argues that the United Nations Convention Against Torture does not apply to U.S. interrogators who operate outside this country. Only in December 2005 was the president forced to accept a law specifying that the torture convention standards do apply outside the U.S.

In addition, The New York Times reported that U.S. intelligence agencies operate secret detention facilities overseas. The House has requested information about these facilities and how they are run.

Even the presiding judge of the FISA court is asking the Justice Department to explain in a classified briefing why it has ignored the federal law which requires that court’s permission before wiretapping can be permitted in the United States. This public request followed the news that one federal judge had resigned from the eleven-member surveillance court after Bush insisted he had the right to bypass it.

These policies on Bush’s part show a clear pattern of domestic and foreign abuse of civil liberties and human rights. The current revelations about illegal spying on U.S. citizens by the NSA need to be seen in the wider context of an ongoing government assault on our freedoms.

The illegal practices of the Bush administration are hardly new in recent American history. “Domestic intelligence activity has threatened and undermined the constitutional rights of Americans to free speech, association, and privacy.” This was the finding thirty years ago of the Senate Select Committee on Intelligence headed by Sen. Frank Church which investigated FBI and CIA practices of spying on U.S. citizens. This Senate committee discovered that the federal government assembled files on thousands of Americans who had broken no law but who were “suspect” because they had protested the war in Vietnam or demonstrated for civil rights. Wiretaps had been placed on Black leaders like Malcolm X and Rev. Martin Luther King, Jr. (awarded the Nobel Peace Prize in 1964 while under federal surveillance). Dissident groups were infiltrated, disrupted, and provoked by agents-provocateurs.

The Bush administration would like to create a situation in the United States similar to the one envisioned by former President Richard Nixon, who said: “When the president does it, that means it is not illegal.” Nixon was wrong then, and Bush is wrong today.

The battle for democratic rights in America is an ongoing struggle, a struggle too important to be left to the politicians of either party. Despite outbursts of bold rhetoric, especially by some prominent Democrats, Congress has no stomach for the fight and will act only when forced to do so. The kind of popular protest and public outcry that won victories for democratic rights in the past is needed again today. Americans not only have the right to know the truth about the Bush administration’s domestic spying campaign; we also have the right and the power to stop it.