On December 16th, 2005, James Risen and Eric Lichtblau of the New York Times published Bush Lets U.S. Spy on Callers Without Courts. The story revealed that:
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”
The NSA is the most secretive of all United States intelligence agenices (it’s nickname is the No-Such Agency), and yet Risen and Lichtblau reported:
Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.
“Nearly a dozen” NSA workers agreed to collude and conspire to leak this information to the New York Times despite the extreme secrecy ethos of that organization, and in spite of the risks to their careers, pensions, and freedom. When the White House was confronted with these revelations, they successfully convinced the New York Times to hold the story for over a year. One must ask oneself, and ultimately reject the possibility, whether these NSA workers would have come forward to report on a program that merely intercepted the phone calls of suspected terrorists calling into the United States.
Confirmation that the Pentagon (for which the NSA works) is engaged in more than just spying on suspected terrorists actually came three days earlier in a December 13, 2005 NBC Nightly News story and was expanded on the next day in a column by William Arkin. NBC News revealed extensive surveillance and penetration of anti-war groups, including:
A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn’t know was that their meeting had come to the attention of the U.S. military.
A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period.
and:
The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes — a military air and sea show in Fort Lauderdale, Fla.
The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense — yet they all remained in the database.
Further confirmation that the NSA domestic surveillance was not limited to people receiving calls from terrorists came in another New York Times piece, published on January 17, 2006. In Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends, Lowell Bergman, Eric Lichtblau, Scott Shane and Don van Natta Jr. reported:
In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.
But virtually all of them, current and former officials say, led to dead ends or innocent Americans.
F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans’ international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.
As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said.
The Bush administration artfully spun these revelations. They ignored the totality of the evidence and focused on the limited revelations in the original New York Times piece. They pretended that the contention related only to one small NSA program, which they re-dubbed the Terrorist Surveillance Program. They claimed that the program focused only on phone calls involving known or suspected Islamic terrorist organizations. And they claimed that the nature of these calls was such that a seventy-two hour retroactive window for obtaining a FISA warrant was impractical. None of these claims are supported by the most rudimentary common sense.
The administration’s illegal spying raised enough of a concern in Senate Intelligence Committee Vice-Chairman Jay Rockefeller’s mind that he wrote a letter to Dick Cheney on July 17, 2003 and sealed it in an envelope in a secure vault. After the December 16, 2005 New York Times article appeared, the U.S. Senate quickly snapped into motion.
On December 19, 2005, a bipartisan group of Senators–Democrats Dianne Feinstein of California, Carl Levin of Michigan, Ron Wyden of Oregon and Republicans Chuck Hagel of Nebraska and Olympia Snowe of Maine,
sent a letter to the Judiciary and Intelligence Committees calling for
an investigation into the alleged domestic surveillance. [29]Senator Arlen Specter (R–PA), the chairman of the Senate Judiciary Committee,
said that “there is no doubt this is inappropriate” and referred to the
White House program as “clearly and categorically wrong.” His call for
investigations was echoed by Congressman Rob Simmons (R-CT), the chairman of the House Homeland SecurityIntelligence Subcommittee. “Was the eavesdropping narrowly designed to
go after possible terrorist threats in the United States or was it
much, much more?” Simmons asked in a statement. In a telephone
interview with the Associated Press, Senator Russ Feingold (D–WI) called the president’s remarks “breathtaking in how extreme they were.” He added, “If that’s true, he doesn’t need the Patriot Act,
because he can just make it up as he goes along. I tell you, he’s
President George Bush, not King George Bush. This is not the system of
government we have and that we fought for.”On January 15, 2006 senator Specter, whose investigation of the warrantless spying program began on February 6, 2006 [30], mentioned impeachment and criminal prosecution as potential remedies if President Bush broke the law, though he downplayed the likelihood of such an outcome. Washington Post On January 20, 2006, Patrick Leahy (D-VT) introduced a resolution [31]
“expressing the sense of the Senate that the Authorization for Use of
Military Force, which Congress passed to authorize military action
against those responsible for the attacks on September 11, 2001, did
not authorize warrantless eavesdropping on American citizens.” He
stated, “The resolution I introduce today is intended to help set the
record straight. It is an important first step toward restoring checks
and balances between the co-equal branches of Government.” [32]On January 23, 2006 Russ Feingold requested that John D. Negroponte, Donald Rumsfeld and Keith B. Alexander document their answers to his questions about data mining. [33] On January 27, 2006 Senator Patrick Leahy (D-VT),
the ranking Democrat on the Judiciary Committee, asked Alberto Gonzales
(among other things) to “provide copies of all memoranda and legal
opinions rendered by the Department of Justice during the past 30 years
that address the constitutionality of government practices and
procedures with respect to electronic surveillance.” [34]On February 5, 2006, Senator Specter said that he believed the Bush administration had
indeed violated the law with its warrantless surveillance program and that its legal justifications for the program were “strained and
unrealistic.” He further said that the program “is in flat violation of the Foreign Intelligence Surveillance Act.”On February 6 the
Judiciary Committee held an open hearing. Republicans insisted that
Attoney General Gonzales not be sworn in, which means that he can’t be
charged with perjury. Gonzalez argued that the “except as authorized by
statute” provision of 50 U.S.C. § 1809(a)(1) meant that, due to the
passage of the Authorization for the Use of Military Force, FISA isn’t the exclusive means by which domestic electronic surveillance can be done.[36]
Specter suggested letting the Foreign Intelligence Surveillance Court
decide the legality of the program. Gonzales sidestepped. Leahy tried
to pin Gonzales down – “You’re not answering my question,” he told
Gonzales. Kennedy said terror suspects could get off due to tainted
evidence. “We don’t believe prosecutions are going to be jeopardized,”
Gonzales responded. Gonzales defends legality of surveillanceGonzalez’s testimony drew comment from Jimmy Carter
who said, “It’s a ridiculous argument, not only bad, it’s ridiculous.
Obviously, the attorney general who said it’s all right to torture
prisoners and so forth is going to support the person who put him in
office.”[37] Insight on the News reported, “Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president.”[38] In a February 28 follow up letter to his March 6 testimony, Gonzales called NSA warrantless surveillance “The Terrorist Surveillance Program.”[39]Senator Arlen Specter (R-Pa.) received a letter from Assistant Attorney General William E. Moschella February 15
which said, “We do not believe that Messrs. Ashcroft and Comey would be in a position to provide any new information,” referring to a request by the Judiciary Committee for testimony from former attorney general John Ashcroft and former deputy attorney general James B. Comey. Specter is circulating legislation that would require the Foreign Intelligence Surveillance Court
to rule on the constitutionality of the NSA program. “Unless they’re prepared to have a determination on constitutionality as to their
programs, window dressing oversight will not be sufficient,” Mr. Specter said. Mike DeWine (R-O) has proposed authorizing the program
and using subcomittees to oversee it.
Now the NY Times reports that there will be no investigation and Mike DeWine’s plan has been agreed to.
Moving to tamp down Democratic calls for an investigation of the administration’s domestic eavesdropping program, Republicans on the Senate Intelligence Committee said Tuesday that they had reached agreement with the White House on proposed bills to impose new oversight but allow wiretapping without warrants for up to 45 days.
The agreement, hashed out in weeks of negotiations between Vice President Dick Cheney and Republicans critical of the program, dashes Democratic hopes of starting a full committee investigation because the proposal won the support of Senators Chuck Hagel of Nebraska and Olympia J. Snowe of Maine. The two, both Republicans, had threatened to support a fuller inquiry if the White House did not disclose more about the program to Congress.
“We are reasserting Congressional responsibility and oversight,” Ms. Snowe said.
The proposed legislation would create a seven-member “terrorist surveillance subcommittee” and require the administration to give it full access to the details of the program’s operations.
Jay Rockefeller responded:
“The committee is, to put it bluntly, basically under the control of the White House through its chairman,” he told reporters. “At the direction of the White House, the Republican majority has voted down my motion to have a careful and fact-based review of the National Security Agency’s surveillance eavesdropping activities inside the United States.”
Rockefeller said he had spent 6 1/2 hours at the NSA last week getting answers to more than 450 questions he had submitted to the agency, adding that he had “fought hard for this information to be shared with the full committee.” But suddenly, he said, “seven of them are okay and eight of them, sorry, you don’t make it.” Rockefeller is one of eight members of Congress who have been briefed on the program.
You can see a good rundown of the legal issues involved in this scandal here. The administration has taken the position that the Congress does not have the ability to restrain them from spying on American citizens, nor does the judiciary have the power to demand oversight of their programs. The administration adamantly refuses to allow a Congressional investigation into their activities, and they have only with the greatest reluctance agreed to brief seven members of the Senate Intelligence Committee on what they are doing. Those seven members are sworn to secrecy and cannot blow any whistles without opening themselves up to legal vulnerability.
This is the state our Republic has come to. This is a constitutional crisis of the gravest import. The administration has been spying on anti-war activists and sending “a flood” of information to the FBI “requiring hundreds of agents to check out thousands of tips a month…virtually all of them, [leading] to dead ends or innocent Americans.” They have justified their activities in the most dishonest manner, they have threatened Congressional members with blacklisting, and they have succeeded in blocking an investigation that would surely lead to impeachment proceedings.
This is a time for all true patriots to make a stand. As he left Independence Hall on the final day of deliberation over the Constitution (in 1787), a woman asked Benjamin Franklin: “Well, Doctor, what have we got—a Republic or a Monarchy?” Franklin responded, “A Republic, if you can keep it.”
In 1775, Patrick Henry stood before the Second Virginia Convention convened at St. John’s Church in Richmond and expressed the sentiments that led to America’s independence and freedom from tyranny:
There is no longer any room for hope. If we wish to be free–if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us! They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength but irresolution and inaction? Shall we acquire the means of effectual resistance by lying supinely on our backs and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable–and let it come! I repeat it, sir, let it come.
It is in vain, sir, to extentuate the matter. Gentlemen may cry, Peace, Peace–but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
We must fight. But not with a “clash of resounding arms”. We must fight with our unassailable moral authority. The preservation of our Republic and the principles for which it stands is the highest calling.
A man’s country is not a certain area of land, of mountains, rivers, and woods, but it is a principle; and patriotism is loyalty to that principle. ~ George William Curtis
Something must be done. And many, finding present conditions not at all intolerable, will think it extreme to react to this tyranny with direct action. But listen to Martin Luther King’s thoughts on extremism:
…though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus and extremist for love: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Was not Amos an extremist for justice: “Let justice roll down like waters and righteousness like am ever-flowing stream.” Was not Paul an extremist for the Christian gospel: “I bear in my body the marks of the Lord Jesus.” Was not Martin Luther an extremist: “Here I stand; I cannot do otherwise, so help me God.” And John Bunyan: “I will stay in jail to the end of my days before I make a butchery of my conscience.” And Abraham Lincoln: “This nation cannot survive half slave and half free.” And Thomas Jefferson: “We hold these truths to be self-evident, that all men are created equal . . . .”
So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvery’s hill three men were crucified. We must never forget that all three were crucified for the same crime — the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth, and goodness, and thereby rose above his environment. Perhaps the South, the nation, and the world are in dire need of creative extremists.
It pains me to say this. I had hoped that Congress would yet reaffirm their authority and cast out these brutes that have no respect for the people, for justice, and for our constitution. At a minimum, I hoped that they would put a stop to illegal domestic surveillance. Instead, they have legalized it. This cannot stand.
I do not know the best way to proceed. I know that simple letter writing will not be sufficient. But, we must write letters too. For starters, I recommend writing to Arlen Specter, Olympia Snowe, and Chuck Hagel. And we must ask Harry Reid to shut down the Senate again, until NSA hearings are granted.
