Speak Up … We Can’t Hear You

It’s been five years now since the President stopped caring whether we knew he was lying to us. It’s been five years since the office dropped the facade of caring what the American people think of what it does. It was harsh when it first happened, but by now it’s really hard to work up a good batch of indignation about it. So, yeah, you kind of just get used to it. It’s an attitude that is eminently manipulable by supporters of this president, this desire to ignore news of his repeated transgressions in an effort to get on with a slightly less depressing life. It’s depressing thinking about this administration and what it’s really doing. That’s their secret weapon—and why they get keep getting away with it.

The most recent affront to morality, decency and law is the wiretapping scandal, which has not yet, to my grateful knowledge, become known as “wiregate”.* Though reams of material have been written about this latest crime—so much so that the President felt he had to mention that everything was hunky dory during the State of the Union address—I have no qualms about adding to the pile.

*Living outside of the U.S. I don’t have access to the salacious extravaganza of news options that other Americans do.

The Fourth Amendment

Most of this information is collected from various sources, but On the President’s Warrantless Wiretapping Program by Russ Feingold (Common Dreams) is an excellent source. Here, in a nutshell, is what this issue is all about.

The fourth amendment to the Constitution of the United States states the following:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Since this was written over two hundred years ago, it has since been interpreted to apply to electronic intrusion into our “papers, and effects”. You want to search someone or their stuff? Get a judge to issue a warrant after showing him or her “probable cause”. So far, it’s pretty straightforward and should come as no surprise to anyone who stayed awake in their history, civics or citizenship courses, or who has watched at least one episode of Law & Order.

This right applies to the police procedure of “wiretapping” or monitoring electronic communication, be it telephone conversations, email exchanges or chat room dialogues. This kind of surveillance can be useful for collecting incriminating evidence, but also exposes a person’s entire private life to officers of the law, all without their knowledge. Unlike warrants for physical searches, the person being wiretapped is not informed prior to the search. Law and Order has also taught us that people get served with a warrant and then have their house turned upside-down. Wiretapping simply happens and the person is none the wiser until they are arrested.**

Simply put, officers of the law provide evidence to public court judges, who determine whether to issue a warrant to allow wiretapping of a suspect or suspects. This process of obtaining a warrant is by no means instantaneous, and, in most cases, doesn’t need to be. This process also only applies to American citizens or foreigners on American soil—the Constitution is silent on the rights of foreigners abroad.

**Or not. There is no requirement to inform a person after the fact that they have been wiretapped, but divulged no useful information. For example, to apologize for intruding on their private sphere. But that’s another issue.

FISA Explained

There are cases, such as those of national security, when two conditions can hinder the process:

1. The issue is extremely time-sensitive; any delay and the communications that need to be monitered will diffuse into the ether, never to be retrieved.
2. The issue is highly classified—as during wartime—and not just any judge can be informed of the particulars of the case.

In the past, other presidents have simply ignored the need for a warrant to search/wiretap Americans, citing executive authority to do so—in particular, Woodrow Wilson during WWI and Franklin Roosevelt during WWII. In 1967, the Supreme Court ruled that our communications were protected by the fourth amendment. A few years later, Richard Nixon, president near the end of the Vietnam War used this same executive privilege to authorize hundreds of wiretaps on American citizens. Though he claimed the surveillance was vital to national security, it turned out to be placed on persons with whom Nixon had personal vendettas. This was the primary reason that Nixon was impeached. In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which removed the right of the executive to “unilaterally decide which Americans to wiretap”, as Nixon had done. Instead, they created “a secret court, made up of judges who develop national security expertise, to issue warrants for surveillance of terrorists and spies.”

The law also provides for speed, as the wiretap can even begin before the warrant is requested, as long as the warrant is issued within 3 days. Both security and speed are well-covered in this law. It is also amendable, as the Bush administration specifically requested and received an extension to “the emergency authority in FISA … from 24 to 72 hours”. The Bush administration has made heavy use of the FISA court, which is also notoriously lenient, having denied only a paltry 4 or 5 of the more than 10,000 requests made by them since 2001.

To wrap up, unwarranted wiretapping of Americans under any conditions is illegal. The FISA court provides a manner in which wiretaps can be obtained with the secrecy and speed appropriate to matters of national security. The Bush administration has made heavy use of this system.

Breaking the Law

Earlier this year, it was revealed that the president had authorized, in secret, thousands of wiretaps on American citizens without a warrant from the FISA court. He boldly admitted it in a press conference a few days later, saying, as usual, that everything was different after 9/11, he was going after the terrorists and the wiretaps were only on Americans working with Al-Qaeda. This is obviously not the case, as these kind of wiretaps would easily pass FISA’s relatively lax requirements. As mentioned above, thousands of other, similar requests went through the court—why not these others? As no one in the Bush administration is willing to give a plausible, truthful answer, we may assume that these wiretaps were made for personal reasons—just as Nixon’s were.

The justifications offered by Bush himself and the top cop in the nation, Attorney General Gonzalez, are flimsy and pathetic. Bush called FISA an “old law” and “out of date”. Didn’t hold up for a second. Next he argued that he had the executive right that “other presidents” had used in the past—that, in times of war, the President is above the law. None have had or claimed that right since 1978, as he well knows (Gonzalez is still using this one). He next claimed that blanket authority to wiretap Americans was included in the authorization for war in Afghanistan. He’s still using this one on and off, as is Gonzalez. Another justification was that “periodic internal executive branch review provides an adequate check” on his activities. Visions of “Lookin’ good, Dick? … Lookin’ damn good, George.” also aren’t very reassuring. He’s now claiming that having informed 8 members of Congress, but only partially and only after swearing them to secrecy, justifies his actions legally. That also doesn’t wash. The administration is using a mixture of these excuses on different groups of people to see what is the most believable.

Even his own words from the past betray him; in 2004, he assured America that “a wiretap requires a court order” and that “[t]he government can’t move on wiretaps or roving wiretaps without getting a court order.” Even as late as June 2005, he was very clear on the laws as explained above:

“Law enforcement officers need a federal judge’s permission to wiretap a foreign terrorist’s phone, a federal judge’s permission to track his calls, or a federal judge’s permission to search his property. Officers must meet strict standards to use any of these tools. And these standards are fully consistent with the Constitution of the U.S.”

Bush has been conducting this secret spying program for at least the last three years, as he admitted himself. So, he was happily spying away the whole time he was telling Americans during his campaign that their rights were safe with him.

Consequences? None.

That the Bush administration’s excuses are so half-hearted is an insult to the American people. It shows how little the administration thinks of our laws and our concerns. It amounts to a half-hearted wave of the hand to shoo a mosquito—but not enough of a wave to risk spilling the mint julep.

Yesterday found Attorney General Gonzalez in front of a congressional hearing, being asked questions about this crime. Note the verb in the previous sentence—”being asked”, not “answering”. The Art of Saying Nothing by New York Times Editor (Common Dreams) gives a disgusted rundown of the proceedings:

“We thought President Bush’s two recent Supreme Court nominees set new lows when it came to giving vague and meaningless answers to legitimate questions, but Attorney General Alberto Gonzales made them look like models of openness when he testified before the Senate Judiciary Committee on Monday about domestic spying.”

Gonzalez, as top cop in the nation, was not required to swear in for the hearings and was thus free to lie his way through the day, as it seems that a moral obligation to the job he was hired for would pose no hindrance.

“He would not [say] how many wiretaps had been conducted [nor] why he was withholding the information … [he] would not say whether any purely domestic communications had been swept up in the program by accident and what, if anything, had been done to make sure that did not happen. He actually refused to assure the Senate and the public that the administration had not deliberately tapped Americans’ calls and e-mail within the United States, or searched their homes and offices without warrants. [H]e would not say what … safeguards were [in place], how wiretaps were approved or how the program was reviewed. He even refused to say whether it had led to a single arrest. (emphasis added)”

This is the same guy who told his confirmation hearing (for the office of Attorney General, the one he now holds) that “it’s not the policy or the agenda of this President to authorize actions that would be in contravention of our criminal statutes.” He was White House Counsel at the time and had self-admitted full knowledge of the spying program. Since he believes the President to be above the law, he happily defends this statement as technically true.

I know that, for all intents and purposes, an impeachment is too much to hope for, but at what point are we allowed to just fucking fire one of Bush’s useless employees? Can’t we at least get rid of Gonzalez?

He was appointed by Bush and approved by Congress. De-approve him.