Magazine article The American Conservative

Watching the Detectives

Magazine article The American Conservative

Watching the Detectives

Article excerpt

[State of War: The Secret History of the CIA and the Bush Administration, James Kisen, Free Press, 256 pages]

Watching the Detectives

JAMES RISEN'S State of War has opened a Pandora's Box for the Bush administration that no amount of howling, scowling, or bogus terrorist-attack warnings will be able to close. Risen's revelations on pervasive National security Agency warrantless spying on Americans shred the final pretenses to legality of the Bush administration. Now the debate is simply whether, as Bush and his supporters claim, the president is effectively above the law and the Constitution during a time of (perpetual) war.

Risen has been a national security reporter for the New York Times for many years. He was not one of the Times reporters who simply recycled hokum from the White House Iraq Group. In October 2002, he wrote a piece shooting down the Bush administration's claims that Mohammad Atta had met an Iraqi intelligence agent in Prague, one of the favorite neocon justifications for attacking Iraq.

Risen had the story on NSA wiretapping before the 2004 election, but the Times, under pressure from the administration, sat on the piece for at least 14 months. The paper's timidity may have awarded George W. Bush a second term as president After the Times finally published Risen's story in mid-December, Bush seized upon the exposé to portray himself as heroically rising above the statute book to protect the American people. The administration has been boasting about its "terrorism surveillance program" ever since.

Bush announced that "the NSA program is one that listens to a few numbers called from the outside of the United States and of known al Qaeda or affiliate people." Except that the program also listens to calls from inside the United States to abroad. And, in some cases, it has wiretapped calls exclusively within the United States. No one knows how flimsy the standard may be that the administration is using for associating people with terrorist suspectsconsumption of more than a pound of hummus a week?

Risen revealed that the "NSA is now eavesdropping on as many as five hundred people at any given time" in the United States. Bush's "secret presidential order has given the NSA the freedom to peruse ... the email of millions of Americans." The NSA's program has been christened the "J. Edgar Hoover Memorial Vacuum Cleaner."

In 1978, responding to scandals involving political spying on Americans in the name of counterespionage, Congress passed the Foreign Intelligence Surveillance Act (FISA). The act prohibited wiretapping of domestic phone calls without a warrant. The special FISA court, however, sets a much lower standard for securing search warrants than is required by other federal courts.

The FISA court has approved almost every one of the more than 17,000 search warrant requests the feds have submitted since 1978. Federal agencies can even submit retroactive requests up to 72 hours after they begin surveilling someone. The number of FISA-approved wiretaps has doubled since 2001. Yet the Bush administration whines that FISA makes the U.S. government a helpless giant against terrorists.

Bush and Attorney General Alberto Gonzales claim that the warrantless wiretaps are based on Congress's authorization to use military force against the people who attacked the United States. But if that measure actually nullified all domestic limits on the president's power, then Americans have been living under martial law since Sept 18,2001, when Congress passed the resolution. Bush and Gonzales also assert that the president has inherent power to tap phone calls, thanks to Article II of the Constitution. This is the same "commander-in-chief override" that Gonzales invoked after the Abu Ghraib scandal to justify the Bush administration ignoring the federal Anti-Torture Act.

The Founding Fathers, in the Fourth Amendment of the Bill of Rights, decreed that government searches must be based on probable cause and approved by a neutral magistrate. …

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