This Way to the Gulags II

James Risen and and Eric Lichtblau report in today’s New York Times that President Bush once again violated the Bill of Rights for the sake of “security.”

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 represents 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.

Let’s see …

Amendment IV

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.

So how is monitoring emails and telephone calls without a warrant not a bare-assed end run around the 4th Amendment?

The Times says “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.”

Get this:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

“Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans.” What safeguards? Oh, the same ones that prevent the feds from engaging in torture, operating “black site” prisons, and holding Jose Padilla for 3 1/2 years without bringing charges (see 6th Amendment), just because? Yeah, I’m reassured.

“The number monitored in this country may have reached into the thousands over the past three years.” And includes a lot of Bush’s political opposition, no doubt.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

That’s actually funny, if you think about it. It’s not like a crew could sneak up to the Brooklyn Bridge sometime when no one was around and start blowtorching.

What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

Post 9/11 it can’t be all that hard to get warrants if you’ve got any probable cause against somebody. So what’s wrong with getting warrants? Somehow, we limped through all previous wars and even the Cold War without going this far.

“The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation’s intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials.” Then streamline the bureaucracy. Don’t run the Constitution through a shredder.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., “Can the National Security Agency, the great electronic snooper, spy on the American people?”

“Generally,” Mr. Mueller said, “I would say generally, they are not allowed to spy or to gather information on American citizens.” President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

Yeah, who needs those pesky checks and balances? The executive branch needs to have unfettered power to do whatever it wants. That’s the American way.

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the legality of the program. But nothing came of his inquiry. “People just looked the other way because they didn’t want to know what was going on,” he said.

This is the path to totalitarianism, you know.

Oliver Willis writes,

There are going to be some folks who say “no big deal”, because in their world it would be okay for the entire CIA to go inside someone’s rectum because the president waved his hands around and said “terrah”. It’s so hard to care anymore.

He’s right. I noticed a number of rightie blogs — some of the same ones who are excited about how we’re bringing “democracy” to Iraq — are busily making excuses for the Bushies. Like we’re too cool to need the Bill of Rights any more.

In the comments to this blog post, someone actually wrote — “If you aren’t doing anything illegal you should have nothing to worry about.” That’s right; the classic line uttered by toadies to totalitarianism throughout history. The lessons of history don’t apply to us, though, because we’re America.

Not any more.

See also: Monitoring books but not guns.

7 thoughts on “This Way to the Gulags II

  1. From everything I’ve seen, the Bush family has “dubious” ties to Osama bin Laden. Are they being eavesdropped on?

  2. Maha, there simply is no time any more for the Constitution. September Eleventh changed everything, mostly people’s memory of the Bill of Rights and habeas corpus, The Great Writ that says you have to have some um evidence before you can toss freedom and liberty aside. If beloved Typepad ever comes back up, you can read more about this at Blank Checks, No Balance
    That might be a while. Important to note the Times did sit on this story for a year. If this story had come out before the election, how much different would it cast a light on Bush? And where would discussion of the Patriot Act be right now? Oy.

  3. “that once may have been seen as crossing a legal line,”

    Once? howabout twice?

    We are not at war because war has not been declared. so how does he get dictatorial power?( even their own twisted argument does not stand up) Abu Gonzalez was on nightline last night denying he knew about anything. Moran tried to point out that since was the AG shouldn’t he know?
    No accountability

  4. A Protestant minister justified torture in the suppression of rebels in the Philippines last century with something of the same reasoning: It’s not really torture because you can always just tell what you know.

  5. Pingback: The Mahablog » September 11 Cancelled the Bill of Rights

  6. “If you aren’t doing anything illegal you should have nothing to worry about”
    Exactly what one of my associates said several months ago.
    That quote is a pandora’s box of infinite proportions, just hope the person under investigation has the right party affiliation, and hasn’t pissed of sombody important lately.
    “Your papers, comrad!”

  7. What the geniuses never figure out is that when the feds can decide what they law is, they can decide just about anything they don’t like is “illegal.”

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