Let’s get one thing clear from the get-go, OK? I have absolutely no problem with the idea of the NSA, the CIA, the Pentagon, or whoever listening in to the phone conversations or reading the e-mails of actual terrorists plotting actual terrorist attacks. A recent Rasmussen poll shows that 64 percent of the people polled agree with this basic proposition.
All that said, however, the real question, and one that the poll didn’t seem to ask, is a lot thornier: How do we go about that? Specifically, who gets to make the decision about who gets listened to or whose mail gets read? What rules do they have to follow to make sure they don’t get out of hand and start just spying on political enemies? And to whom are they accountable?
If you believe the theories being promulgated by the Bush White House, the answers to those questions are: George Dubbya Bush; no rules whatsoever; and no one at all.
Recently, Washington was rocked by a New York Times article revealing that President Bush had authorized warrantless wiretaps of alleged terrorist suspects from the dark days after 9/11 right up the present.
Only problem is, there’s a legal procedure in place for putting this sort of surveillance in place. In the years following Watergate and the revelation of the FBI’s programs spying on antiwar protesters, the Congress enacted the Foreign Intelligence Surveillance Act, or FISA, in large part to regulate the abuse of wiretaps and surveillance.
FISA provides for a secret court composed of seven federal judges picked by the chief justice, who can authorize wiretaps and other surveillance of “agents of foreign powers,” specifically including terrorists. And when I say secret, I mean really secret. The records and files of the cases are sealed and may not be revealed even to people being prosecuted with evidence obtained via a FISA order.
FISA gives the government wide latitude. They can even put a tap in place without a FISA order so long as they apply for one within 72 hours (so there’s your “ticking nuclear bomb in New York” scenario covered). FISA clearly states that it’s the only path to permissible surveillance.
In 2004, there were 1,758 applications for FISA orders. Not a single one was turned down.
If there were problems with FISA, especially right after 9/11, the president could have gone to Congress and gotten pretty much anything he said he needed. But he didn’t. And why? The answer lies in some of the scariest pronouncements ever to come out of this or any White House. Memos from the attorney general’s office to the president assert that the president’s authority as commander-in-chief was “plenary.”
“Plenary.” Such an innocent-sounding word, with such scary implications. Plenary is a fancy legal term meaning, essentially, unlimited.
As one such memo put it: “In a series of opinions examining various legal questions arising after Sept. 11, we have examined the scope of the president’s commander-in-chief power. It must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.”
Or, as a former president once famously observed, “if the president does it, it’s not illegal.” Of course, that president was Richard Nixon.
It’s no coincidence that two of Bush’s senior advisers, Dick Cheney and Donald Rumsfeld, were also prominent players in the Nixon White House. Bush is now seeking to put in place the Imperial Presidency, free of any pesky checks and balances on the power of the executive branch, that Nixon and Company only dreamed of.
If you think this is a partisan issue, think again. Check out these quotes from prominent members of the president’s own party:
Senator Lindsey Graham (R-S.C.): “I don’t know of any legal basis to go around that [The FISA Court]. There may be some, but I’m not aware of it. And here’s the concern I have. We can’t become an outcome-based democracy. Even in a time of war, you have to follow the process, because that’s what a democracy is all about: a process.”
Former Congressman Bob Barr (who was one of the leaders of the drive to oust Bill Clinton): “The fact of the matter is the law prohibits, specifically prohibits, what apparently was done in this case, and for a member of Congress to say, ‘Oh, that doesn’t matter, I’m proud that the president violated the law’ is absolutely astounding.”
Sen. Arlen Specter: “There is no doubt that this is inappropriate.”
Remember, the real question is not “Is it OK to wiretap terror suspects,” but, “Is it OK for the president to do so by decree, without any checks and balances whatsoever, with no oversight, and with no one to answer to but himself?”
If the Rasmussen poll had asked the question that way, I’m thinking the poll numbers would have been a lot different. At least I hope so. I think I’m like most people in that I don’t want to live under an American king any more than I want to live under a Muslim caliph.