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Wednesday, September 06, 2006

Does NSA Wiretapping have any Limits?

Ok. Here's the thing -- nobody really likes George W. Bush anymore. A Diageo/Hotline poll taken 8/17-8/20 found that 39% of respondents had a favorable opinion of the president, 55% unfavorable and -- a stat I just love -- 1% claim to never even have heard of him. 64.41% find him annoying, in a separate, unscientific poll.

Yet, while republicans are running from any association with Bush and even the label 'republican', they're still treating Bush as if he were widely beloved and his policies are wildly popular.

Glenn Greenwald told us a few days ago that republicans and many in the press are pushing the idea that the NSA wiretap program is a winner in the court of popular opinion. He cites a Washington Post article claiming "A bill to clarify the legality of the NSA's wiretapping without court warrants will also force Democrats to choose between a liberal base that believes the program is an unconstitutional breach of civil rights and a majority of Americans who back the effort":

How does the Post reconcile this statement with this fact, reported on August 17 by CNN:

Opinion polls suggest the U.S. public has been divided on the NSA program. A CNN poll conducted by Opinion Research Corp. on May 16-17 found that 50 percent of the respondents believe the program was "wrong," while 44 percent believe it was "right."

Or with this poll ("voters say 55 - 42 percent that the government should get court orders for this surveillance"), or with this one ("47 percent said [warrantless eavesdropping] was right and 50 percent called it wrong"), or with this one ("49 percent of respondents said the president had definitely or probably broken the law by authorizing the wiretaps and 47 percent said he probably or definitely had not"), or with this one (pluralities in 37 out of 50 states believe it is "clear that Bush broke the law"), or with this one ("A majority of voters want Congress to 'demand that the warrantless eavesdropping be stopped because it is illegal'”). And all of that was before a federal judge ruled that warrantless eavesdropping violates both the criminal law and the U.S. Constitution.

There are several bills in the works to cover Mr. Popular's ass once dems take the House, Senate, or both. Jeremy Brecher and Brendan Smith write for The Nation:

The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority--perhaps as part of the military appropriations bill, the proposals for Guantánamo tribunals or a new catch-all "anti-terrorism" package. Why are they doing it, and how can they be stopped?

According to Brecher and Smith, "the legislation the Administration has circulated on Capitol Hill would decriminalize such acts retroactively." So what's a war crime now, will now longer be a war crime -- in fact, it will no longer have been a war crime. Really makes you wonder what outrageously awful, evil crap is waiting to come out, doesn't it? There's no reason to retroactively redefine a crime if they haven't violated the existing definition.

Likewise, two bills are being debated today which clear Bush of any crimes committed in his NSA wiretapping scheme by retroactively legalizing it. I'm not really sure how this is supposed to work, since the program has been ruled not only illegal, but an unconstitutional violation of the Fourth Amendment. Wouldn't they have to amend the Constitution? Good luck with that.

Putting the unknown outstanding war crimes aside, the NSA scandal is the first order of business after the recent congressional recess. According to the ACLU, "Two similar bills are slated to be marked up in, and possibly voted out of, committee next week - Rep. Wilson's H.R.5825 in House Judiciary on Wednesday, September 6, and Sen. Specter's S.2453 in Senate Judiciary on Thursday, September 7." Both would retroactively legalize Bush's unconstitutional program.

And the lies being told about it are outrageous. We're being told that opposing the NSA program means opposing listening in on terrorists. Nothing is farther from the truth. Greenwald again:

If I had one wish, it would be for journalists everywhere to ingest this one extremely simple, undeniable fact -- FISA, as written, allows the President to "listen in when Osama bin Laden is calling." Under the law as it has existed for 28 years, "if al Qaeda is calling into the United States [the President can] know why they're calling." The "Terrorist Surveillance Program" doesn't give the President the power to listen in on those calls because he already has that power under FISA.

The difference between FISA and the warrantless eavesdropping program is not about whether the President can eavesdrop on terrorists. He can eavesdrop on all of the terrorists he wants under FISA as it is written. What is being debated -- the only difference -- is whether he should be able to eavesdrop on the conversations of Americans with judicial oversight (as all Presidents have done for the last 30 years) or whether he can eavesdrop on Americans in secret, without oversight (which led to severe abuses of the eavesdropping powers in the four decades prior to FISA). That is what is being decided, not whether he can eavesdrop on terrorists.

Since it's already legal to listen in, then the purpose of the legislation is to protect Bush, not protect the program. It seems inevitable to me that we'll find out exactly who was being listened to and that that info's not going to be good for the administration.

Follow me here; since it would be easy to get a warrant to listen in (in fact, FISA allows you to get a warrant after you wiretap), why wouldn't you get one? Maybe because the request would be denied?

And information gained without a warrant wouldn't be admissible in court. That means this program can be expected to result in very few prosecutions -- in fact, prosecutions in terrorism cases have fallen to pre-9/11 levels. At best, this sounds like a huge fishing expedition.

At worst, it's the administration monitoring political opponents, not terrorists. In fact, we know this has been happening. According to the ACLU:

Following reports that Baltimore peace groups have been targets of illegal spying, the American Civil Liberties Union of Maryland today filed public information requests with federal and state authorities. The ACLU said it is concerned that the disturbing national trend of government surveillance of political and religious groups may also be happening here in the "Free State."

But was this NSA spying? Why, yes it was. reports have revealed internal NSA documents showing that the agency used law enforcement, including the Baltimore Police Department, to track members of the anti-war groups as they prepared for protests outside the Fort Meade facility. The documents reportedly identified a special "Baltimore Intel Unit" that engaged in the spying.

The groups said they are particularly concerned by the NSA's actions in light of revelations that President Bush secretly authorized the agency to engage in warrantless electronic eavesdropping and physical surveillance of Americans.

If we know that the NSA monitors nonviolent peace groups as part of its 'terrorist surveillence program', then it doesn't seem much of a stretch that the administration is listening to more consequential critics as well. If Quakers are worth keeping an eye on, then why not spy on journalists?

Well, that's happened as well. From ABC News:

Brian Ross and Richard Esposito Report:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

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.

Looking at these instances, it doesn't seem all that crazy to worry that they're listening in to other calls from other people on the 'enemies list'. Have they listened to the Kerry campaign, Howard Dean, state and national arms of the Democratic Party, me, you when you call your senator or rep? Anyone, anytime, for any reason?

Paranoid? I hope so. But you live in a very bad place in very bad times when the paranoid is also the plausible.


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