Bush, NSA Kill Democracy
by MARK GABRISH CONLAN
Copyright © 2006 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
Even by the increasingly jaded standards of Americans who have lived through the Bush administration and the nearly five years of its unilaterally declared “war on terror,” the lead article in the May 11 edition of USA Today was a shocker. “NSA Has Massive Database of Americans’ Phone Calls,” read the headline over Leslie Cauley’s story. Citing anonymous sources, Cauley wrote, “The National Security Agency (NSA) has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth” — the three largest providers of phone service in the U.S.
“The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime,” Cauley continued. “The program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.” One of Cauley’s sources called the effort “the largest database ever assembled in the world,” and said the NSA’s goal was “to create a database of every call ever made” within the U.S.
If the USA Today story is correct — and two of the phone companies cited as cooperating with the NSA, Verizon and BellSouth, have said they were not providing the information USA Today said they were — the NSA is receiving reports from these phone companies containing three pieces of information on every phone call they are involved in providing: your phone number, the number you’re calling and how long the call lasts. The NSA isn’t — at least not yet — actually listening in on the content of your phone calls, nor is it recording the names and street addresses or cell locations of the callers. “But,” as the Los Angeles Times editorialized May 20, “it would be child’s play to combine these records with reverse phone directories, credit reports and other widely available databases to yield a much more revealing portrait of the people and places behind the numbers.”
There are a number of salient points to make about this program: 1) It is patently illegal on its face. 2) It is a symptom of the Bush administration’s visceral contempt for civil liberties, the right of privacy, judicial due process and anything else that would stand in the way of Bush’s radical-Right blueprint for a so-called “unitary executive” — essentially turning the Presidency into a plebiscitary dictatorship unconstrained by any constitutional or legal limits on its powers. 3) Bush and the members of his administration have systematically lied to the American people about the extent of their spying on them and sought to punish the journalists who have brought these stories to light. 4) If previous events and preliminary poll results are any guide, the majority of the American people have become so traumatized by 9/11 and the fear-mongering of this administration that they will go along with this latest offense against their liberties.
The question of whether the government has a right to obtain both phone numbers involved in every telephone call in the U.S. was settled in 1986, when the U.S. Congress passed the Electronics Communications Privacy Act. This law was passed in response to a U.S. Supreme Court decision in Smith v. Maryland (1979) in which the court wrote, “We doubt that people in general entertain any actual expectation of privacy in the [phone] number they dial.” Oh yes, they do, Congress said in 1986. Rather than make it illegal for the government to ask for such records, the Act made it illegal for the private phone companies to give the government that kind of information.
Section 2702 of the Electronics Communications Privacy Act says that providers of “electronic communications … shall not knowingly divulge a record or other information pertaining to a subscriber or customer … to any government entity.” The law makes exceptions in case a customer gives the company permission to release his or her records to the government, or in case of “any emergency involving danger of death or serious physical injury.” James X. Dempsey, an attorney for the Center for Democracy and Technology, told the Los Angeles Times that the Bush administration might have been able to make a case for an eavesdropping program like this “in the immediate aftermath of 9/11” — when the NSA actually started this data collection — but, the attorney added, “I don’t understand how that could serve as a ‘good faith’ defense for years afterward.”
Qwest, America’s fourth largest phone company, refused to provide the NSA with the information on its customers’ phone numbers and which numbers they were calling. According to the attorney representing Joseph Nacchio, who was chair and CEO of Qwest in late 2001, Nacchio concluded that complying with such a government request without either a search warrant or approval from the secret court set up under the 1978 Foreign Intelligence Surveillance Act (FISA) “violated the privacy requirements of the Telecommunications Act,” attorney Herbert J. Stern told the Los Angeles Times.
Indeed, AT&T — the largest U.S. phone company and the one so far that has refused to deny providing the NSA this information — has already been sued in San Francisco and Texas by customers claiming their privacy has been violated illegally. The administration’s response to the lawsuit has been to file a motion to have it thrown out of court by saying that the mere act of a court hearing such a suit would itself violate national security.
That’s right: your government is arguing not only that it has a right to spy on you any time it wants, in any way that its inventive minds and modern technology can come up with, but that even if there’s a law on the books making the spying illegal, no court in the country has the right to enforce it. “Adjudication of whether the alleged surveillance activities have been conducted within lawful authority cannot be resolved without state secrets,” U.S. assistant attorney general Peter D. Keisler and other federal attorneys wrote in a 34-page document filed on May 13 with the court hearing the San Francisco suit.
According to Kevin Bankston of the Electronic Frontier Foundation, a civil liberties group representing the plaintiffs in the suit against AT&T, the government is arguing “that no one can ever go to court to stop illegal surveillance, so long as they claim it was done in the name of national security.” What’s more, the government filed a longer version of the document with the judge in the case under court seal — which means they can put any sort of argument in it they want and the other side’s lawyers will be unable to answer it because it would be a violation of national security for the judge to show it to them.
The Bush administration has presented its spying program as a legitimate response to the 9/11 attacks and the so-called “war on terror” it unilaterally declared after they occurred. But everything they’ve done indicates a thinly veiled contempt for the whole concept of a right to privacy. In the 1990’s the words “right to privacy” were usually used politically in connection with the civil rights of women and Queers — whether the government had a right to make laws against birth control, abortion and certain kinds of sex between consenting adults — but in the Bush era it’s become clear that the Right’s argument that, since the U.S. Constitution nowhere contains the actual words “right to privacy,” no such right exists, goes far beyond the politics of the sex and culture wars.
Within six weeks after 9/11, the Bush administration had proposed — and a supine Congress had overwhelmingly passed — the USA PATRIOT Act, which contained extensive assaults on civil liberties and privacy rights. While a few of the more marginal provisions, including the one that allowed the government to snoop through your library records and prevented anyone who worked for a library from giving you a heads-up that the feds were asking about you, attracted public attention, the core of the USA PATRIOT Act was its provision allowing the FBI to launch an investigation on any American, anywhere, any time, just by issuing a “national security letter” containing the accusations against you and a warning that anyone disclosing its contents, or even its existence, to the target of an investigation would themselves be guilty of a federal crime.
The USA PATRIOT Act was full of provisions that revealed the mind-set of the Bush administration and the modern Right in general that the people are, or at least should be treated as, an enemy until they prove otherwise. And that was merely the public tip of the iceberg; all the spy programs we’ve heard revealed in the last few months, and probably a few more whose existence is still secret, were also instituted in the first weeks after 9/11. Among these were the NSA’s requests for the phone numbers involved in any U.S. call and the previously publicized program of wiretapping any phone call they wanted to between a person in the U.S. and one outside the country, without bothering with the legal requirement of a warrant under the 1978 Foreign Intelligence Surveillance Act (FISA). There was also a subpoena to America’s four largest Internet service providers for information on their customers similar to what they were asking for from the phone companies — which we found out about only because one of the companies, Google, exercised its legal right to challenge the subpoena in court (and lost).
The Bush administration’s actions regarding the people’s right to know what their government is doing and hold it accountable have displayed the same kind of contempt for democracy as the USA PATRIOT Act and the secret spying programs. Even before 9/11 the administration had rewritten its guidelines for complying with the Freedom of Information Act so it became much more time-consuming and more expensive for people to extract information on what their government is actually doing. Bush has held relatively few press conferences with the media and has heavily stage-managed those he has given. And his administration’s response to the media stories on his secret spy programs has been to threaten the journalists who wrote them and the papers that published them with prosecution and to accuse them, in public, of what amounts to treason.
Indeed, on May 15 ABC-TV journalists Brian Ross and Richard Esposito posted to the ABC Web site an article that suggested that the purpose of the NSA’s phone surveillance may be not to protect the nation against terrorism, but to protect the Bush administration against the people knowing what it’s up to. One of their government sources contacted them to warn them that the government was tracking their phone calls to learn who their sources are. “It’s time for you to get some new cell phones, quick,” the source told them in person.
“Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation,” Ross and Esposito wrote. “One former official was asked to sign a document stating he was not a confidential source for New York Times reporter James Risen” — the man who broke the story that the NSA was wiretapping phone calls between Americans and people in other countries without obtaining FISA warrants first. While Ross and Esposito acknowledged that their calls to their sources weren’t actually being wiretapped, they concluded, “A pattern of phone calls from a reporter … could provide valuable clues for leak investigators.”
Few people have exposed the Bush administration’s contempt for privacy rights or the people’s right to know in a more eloquent or clear-cut fashion than the man who rightfully won the 2000 Presidential election, only to be done out of the office by a corrupt court process and a Republican propaganda campaign through their “kept” media, talk radio and the Fox channel: former vice-president Al Gore. On January 16, Gore spoke to a group called the Liberty Coalition and described eloquently what the Bush administration’s theory of the “unitary executive” actually means:
“Under this theory, the president’s authority when acting as commander in chief or when making foreign policy cannot be reviewed by the judiciary, cannot be checked by Congress. And President Bush has pushed the implications of this idea to its maximum by continually stressing his role as commander in chief, invoking it as frequently as he can, conflating it with his other roles, both domestic and foreign. And when added to the idea that we have entered a perpetual state of war, the implications of this theory stretch quite literally as far into the future as we can imagine.
“This effort to rework America’s carefully balanced constitutional design into a lopsided structure dominated by an all-powerful executive branch, with a subservient Congress and subservient judiciary, is ironically accompanied by an effort by the same administration to rework America’s foreign policy from one that is based primarily on U.S. moral authority into one that is based on a misguided and self-defeating effort to establish a form of dominance in the world. And the common denominator seems to be based on an instinct to intimidate and control.”
What’s more, while ordering the NSA’s domestic spying, Bush has consistently lied about it. During a campaign appearance in Buffalo on April 20, 2004 he flatly denied that the NSA was wiretapping anybody’s phone calls without first going to the legally constituted FISA court: “By the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”
That was a lie — and it was a lie the Bush administration was able to pressure the New York Times not to expose before the 2004 election by claiming “national security” as a justification. When the New York Times finally published the story in December 2005 — over a year after they learned about it — that the NSA was listening in on people’s phone calls without an FISA warrant, Bush changed his line and said the program was “limited” to “taking known al-Qaeda numbers — numbers from known al-Qaeda people — and just trying to find out why the phone calls are being made.”
Now we know that that, too, was a lie: that the NSA was recording nearly every single phone number involved in a call anywhere in the United States, whether the call was international or purely domestic, and running the numbers through their computers looking for so-called “patterns” that might identify so-called “terrorists.” And we already know from the horror stories that have already come out how expansive the government’s definition of what constitutes “terrorism” or “support for terrorism” is.
The FISA law and the other limits on the government’s ability to surveil its own people were passed in the late 1970’s after similar revelations about the conduct of the FBI under director-for-life J. Edgar Hoover (whom even President Nixon was afraid of — “He’s got a file on everybody,” Nixon said on one of the Watergate tapes), which had mounted a systematic program called COINTELPRO to spy on domestic political activists, including the late Martin Luther King, Jr. There were also stories about the CIA’s activities abroad, including the assassination of foreign leaders and fomenting military coups against democratically elected governments worldwide, including Iran in 1953 (which sent the Muslim world a message that the U.S. didn’t consider them ready for democracy, which along with our down-the-line support for Israel sowed the seeds of the Muslim world’s hatred of us) and throughout Latin America in the next three decades.
FISA was seen as a compromise, allowing legitimate surveillance of identifiable targets with some link to terrorism or America’s military enemies while denying the government a blank check to spy on anyone, anywhere, any time for any reason at all. Its requirement that the government present evidence and obtain a warrant from a secret court before they can listen to Americans’ phone calls abroad has hardly proved onerous; out of more than 18,000 requests for warrants the court has turned the government down only four or five times. But that’s not good enough for Bush — or for some of his crazier apologists, like Los Angeles Times columnist and Foreign Affairs contributor Max Boot, who published a column May 17 that said bluntly that the U.S. isn’t spying on its citizens enough.
Boot’s column makes one valid point: that the information the government requested from the phone companies and ISP’s exists at all because those companies retain it for their own commercial reasons, and it’s therefore legitimate to question why it’s a violation of privacy for government to have this information but not for private corporations to collect it. Elsewhere, though, his column has the snippy, sneering tone common to Right-wing discourse these days, including the accusation in his last sentence that anybody who disagrees with him is a traitor and a threat to the nation:
“How far do the civil-liberties absolutists want to take their logic? Will troops in Afghanistan and Iraq soon have to read Miranda warnings to captured suspects and apply for a court’s permission before searching a terrorist safe house? Or do such niceties stop at our borders, thereby giving Al Qaeda and its ilk the freedom to operate unhindered only in the U.S.?
“Much of this silliness can be traced to the 1978 Foreign Intelligence Surveillance Act, which for the first time made judges the overseers of our spymasters. … FISA is a luxury we can no longer afford. … The USA PATRIOT Act scaled back some FISA provisions, such as the “wall” between intelligence and law enforcement agents, but enough remain intact to raise unnecessary questions about the legality of some much-needed homeland security measures. This archaic law should be euthanized. …
“So far there has been no suggestion that the NSA has done anything with disreputable motives. The administration has nothing to be ashamed of. The only scandal here is that some people favor unilateral disarmament in our struggle against the suicide bombers.”
Most appallingly of all, the preliminary polls taken after USA Today’s revelation of the NSA’s “use a phone, end up on a surveillance list” program showed the American people supporting the Bush administration and the NSA surveillance by a margin of nearly two to one. The survey ABC News and the Washington Post conducted May 12 revealed a whopping 63 percent of the respondents thought the NSA’s program was “an acceptable way to investigate terrorism,” and 65 percent said it was important to investigate potential terrorists “even if it intrudes on privacy.” Only 35 percent of the people responding to the poll called the program “unacceptable,” and just 24 percent of people said they strongly objected, compared to 44 percent who strongly supported the effort.
If these results are valid — there are later polls suggesting the support may be dropping off over time — it suggests that a majority of the American people have been so terrorized, so brainwashed, so traumatized by the 9/11 attacks and the constant drumbeat of fear-mongering by the Bush administration that they are willing to give up their privacy rights for the illusion of safety from terrorism. Probably a lot of people who responded the administration’s way in those polls don’t really think they’d be giving up their privacy rights. What they’re willing to sacrifice is someone else’s rights; with an almost childlike naïveté, many Americans still believe in the superior wisdom of their law enforcers and assume that no one gets suspected or investigated unless they’re guilty of something.
Bush himself took advantage of this in a statement right after the USA Today article that was blatantly based on a fallacy logicians call post hoc, ergo propter hoc. He said, in so many words, that the fact that there hasn’t been a 9/11-style attack on the U.S. since 9/11 is proof that his security measures are working — and therefore they have to be kept in place or the country runs the risk of another attack. Bush said he couldn’t tell us how his assaults on the privacy rights and freedoms of Americans are protecting us against terrorists — that in itself might give the terrorists information they need, he explained — but we needed to trust him. Oh please, Big Daddy Bush, do whatever you want, only please keep us safe!
“Those who would give up liberty for a little security deserve neither liberty nor security,” Benjamin Franklin said at the founding of the United States and the adoption of its constitution over 200 years ago. Franklin also famously said, in response to a woman who asked him what sort of a government the Constitutional Convention had given us, “A republic — if you can keep it.” So far, over the five and one-half years of his presidency, George W. Bush has shown a single-minded determination to take our republic away from us and replace it with a Presidential dictatorship — and unless we act now, that is indeed what will happen.