A fellow from a town just outside of Austin wrote a four-sentence letter to the editor of our local daily that astonished me: “I want the government to please, please listen in on my phone calls. I have nothing to hide. It is also welcome to check my emails and give me a national identification card, which I will be proud to show when asked by people in authority. What’s with all you people who need so much privacy?”
Well, gee where to start? How about with the founders? Many of the colonists who rose in support of the rebellion of ’76 did so because their government kept snooping on them and invading their privacy. Especially offensive was the widespread use of “writs of assistance,” which were sweeping warrants authorizing government agents to enter and search people’s homes and businesses — including those of people who had nothing to hide. The founders had a strong sense of the old English maxim “A man’s house is his castle.” They hated the government’s “knock at the door,” the forced intrusion into their private spheres, the arrogant abrogation of their personal liberty. So they fought a war to stop it. Once free of that government, they created a new one based on laws to protect liberty — and this time they were determined to put a short, tight leash on government’s inherently abusive search powers.
Hence, the Fourth Amendment: 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.
Periodically in American history, presidents have tried to annul our basic right to be left alone. John Adams imposed the infamous Alien and Sedition Acts. Lincoln suspended habeas corpus during the Civil War. Woodrow Wilson conducted the Palmer Raids. FDR interred Japanese-Americans and others. And LBJ and Nixon used the COINTEL program to spy on war protestors and civil rights activists, including Martin Luther King Jr.
In each case, however, the abuses were temporary. Americans rebelled and gradually brought the government back in line with our country’s belief that privacy, a basic human right, is a cornerstone of democracy.
Now comes the Bush-Cheney regime, pushing the most massive and rapid expansion of presidential might America has ever known. “I believe in a strong, robust executive authority,” growled Dick “Buckshot” Cheney, architect of the power grab. He added, “The president of the United States needs to have his constitutional powers unimpaired, if you will.” I wouldn’t, but they’re nonetheless asserting an imperious view of unlimited executive power that is foreign to our Constitution, demolishes the founders’ ingenious system of checks and balances (key to the functioning of our democratic republic), and transforms America’s government into a de facto presidential autocracy.
Their push includes a White House program of domestic spying so sweeping that it would make Nixon blush; an audacious claim of a unilateral executive right to suspend treaties and ignore U.S. laws; an insistence that a president can seize U.S. citizens with no due process of law and imprison them in CIA “black sites” or send them to foreign regimes to be tortured; a series of new plans for military spying on the American people; the repression of both internal dissenters and outside protestors; an all-out assault on the public’s right to know; and well, way too much more.
The rise of a supreme executive is such a fundamental threat to our constitutional form of government — and to who we are as a people — that the Lowdown will devote both this issue and next month’s to it. The media barons have covered this rise only sporadically and disjointedly, but it’s important for We The People to see the frightening whole of it and launch the rebellion of ’06.
NATIONAL SECURITY AGENCY. Richard Nixon is the godfather of the Bush-Cheney philosophy of executive supremacy. “Well, when the president does it, that means it is not illegal,” Tricky Dick explained to us some 30 years ago. This plenipotentiary view of the American presidency (which would send shivers through the founders) is behind the unilateral, secret and illegal directive issued by Bush in 2001, ordering the NSA to spy on ordinary Americans. It’s now conceded that untold thousands of citizens who have no connection at all to terrorism have had their phone conversations and emails swept up and monitored during the past four years by NSA agents.
This is against the law. First, Bush’s directive blatantly violates the Fourth Amendment, for it sends his agents stealing into our lives to search our private communications without probable cause and without a warrant. Second, it goes against the very law creating NSA, which prohibited the agency from domestic spying without court supervision. Third, it bypasses 1978’s Foreign Intelligence Surveillance Act, which set up a special FISA court specifically to issue secret warrants so a president could snoop on Americans suspected of being connected to terrorists. Going around this law is a felony, punishable by five years in prison. Yes: George W. Bush broke the law. He’s a criminal.
When this sweeping program of presidential eavesdropping was revealed last December by a leak to the New York Times, Bush first tried lying, scoffing that the news report was mere media “speculation.” Didn’t work. So then he turned defiant, belligerently declaring that damned right he was tapping phones. “If you’re talking to a member of al-Qaida,” he announced, “we want to know why.”
Of course, George, if you have reason to believe that a particular American is talking to al-Qaida, you should scoot over to FISA pronto and get a spy warrant. We don’t have time to wait for no stinking court order, he shouts, we gotta jump on these traitors quicker than a gator on a poodle. The FISA system is “too cumbersome” — we need “agility.”
Yeah, well, democracy is supposed to be a little cumbersome, so guys like you don’t run amok. Fact is, FISA judges can act PDQ and are hardly restrictive. Of the 5,645 times Bush has requested surveillance warrants, how many did the court reject or defer? Only six! Besides, FISA lets presidents go a-snooping all they want, the instant they want, then come back to court three days later to get the warrant. How cumbersome is that? Even GOP lawmakers didn’t buy the agility line, so Bush next tried claiming that Congress had actually given him the go-ahead to bypass the law. On Sept. 14, 2001, he said Congress passed the “authorization for use of military force,” empowering him to use all necessary force against the 9/11 terrorists. Yet none of the 518 lawmakers who voted for this say that it included permission for Bush to spy illegally on our people. In fact, George W. specifically asked congressional leaders to give him this permission but was turned down. Finally, Bush has resorted to spouting Nixon’s maxim that a president’s official actions are inherently legal. Even though he broke the law knowingly and repeatedly, the Bushites assert that it’s OK, citing a dangerous and thoroughly un-American defense that, as commander-in-chief, he has the constitutional right to break any law in the interest of national security. In matters of war and foreign policy, he, Cheney, and Alberto “See No Evil” Gonzales claim that the president’s authority cannot be checked by Congress or the judiciary — indeed, they don’t even have to be informed.
Nonsense. He’s commander-in-chief of the military — not of the country. He’s president, not king. And as president, he’s the head of only one of the three co-equal branches. Yet bizarrely and pathetically, Congress has rolled over and even cheered this gross usurpation of its clear constitutional responsibilities — including its power to declare war, control the public purse, regulate the military, ratify treaties, make laws “necessary and proper” for the conduct of all government, provide oversight of executive actions and generally serve the public as a check and balance against presidential abuses. As Sen. Russ Feingold, the truly fine defender of our rights and liberties, wrote in a February blog: “I cannot describe the feeling I had, sitting on the House floor during Tuesday’s State of the Union speech, listening to the president assert that his executive power is, basically, absolute, and watching several members of Congress stand up and cheer him on. It was surreal and disrespectful to our system of government and to the oath that as elected officials we have all sworn to uphold. Cheering? Clapping? Applause? All for violating the law?” The breathtaking notion that Bush can, on his own say-so, thumb his nose at the due process of law and even be a serial lawbreaker has astounded not only Feingold but also a slew of leading right-wing thinkers:
- Paul Weyerich of Free Congress Foundation: “My criteria for judging this stuff is, what would a President Hillary do with these same powers?”
- George Will, columnist: “[Executive] powers do not include deciding that a law — FISA, for example — is somehow exempted from the presidential duty to ‘take care that the laws be faithfully executed.'”
- David Keene of the American Conservative Union: “The American system was set up on the assumption that you can’t rely on the good will of people with power.”
Ironically, this Bush push to place himself above the law is centered on a failed program. The agents who are having to sift through piles of our calls and emails say that nearly all of the sifting is worthless, finding fewer than 10 citizens a year who even warrant further checking. In fact, the Bushites can point to only two “successes.” They brag that the spying uncovered a plot to detonate fertilizer bombs in London — but British officials deny that NSA spying helped uncover the plot. Their other “success” is ludicrous — they claim to have found a guy who was going to cut down the Brooklyn Bridge. His weapon? A blowtorch. In response to Bush’s illegal spying, Congress has been almost comical. After huffing and puffing about doing a deep investigation into the criminality of the program, Senate Republicans abruptly cancelled their plans for public hearings and ran to the White House waving surrender hankies. Last month, they announced that they had negotiated with Cheney, who graciously gave the Senate a grand oversight role. What did they get, specifically? A new subcommittee. TAH-DAH! Now seven senators will be allowed an occasional peek at whatever documents the White House is willing to send to them. In turn, Congress will sanction Bush’s secret spying on Americans, letting him snoop on someone for 45 days without having to bother getting a warrant from that pesky FISA court. You can just hear Cheney guffawing back in his cave. Bush’s assertion of extraordinary authority has nothing to do with terrorism and everything to do with his and Cheney’s mad intent to enthrone the American presidency with “plenary” power — i.e., unqualified, absolute power.
March of autocracy
It would be distressing enough if the Bush-Cheney NSA power play was their only assertion of authoritarian government, but it is just one item on an astoundingly long list. Here are two particularly brash examples:
IMPRISONMENT. Bush maintains that, as “a war president,” he has the inherent power (never claimed by any predecessor) to seize and imprison any American citizen suspected by his administration of having even the vaguest connection to terrorists. He declares that he can throw citizens in federal jails in perpetuity on his own authority, without consulting a judge or getting an arrest warrant. The hapless innocent suspects who wail that a nightmarish mistake is being made are out of luck. Bush says that his executive prisoners can be taken in secret (without even notifying their families), do not have to be told of any specific charges against them, have no right to lawyers and can be held without trial.
They might be shipped to secret CIA prisons around the world, which were authorized not by Congress, but by a classified executive order signed by Bush on Sept. 17, 2001. Yes, the order creating the secret prisons was itself secret. These CIA “black sites,” as they are called in Bush’s bureaucratic netherworld, are not subject to congressional oversight. Last December, after members of Congress learned about these facilities, both chambers voted to get reports on where the CIA’s prisons are and what goes on inside them. But at the behest of the White House, GOP leaders quietly took this provision behind closed doors and killed it — the majority vote be damned.
Accused citizens might also be secretly turned over to repressive foreign governments for interrogation — an unpleasant, illegal and morally bankrupt practice known as “extraordinary rendition.” Consider Maher Arar’s case. Returning home from a family vacation in 2002, this Canadian software engineer was “detained” by the feds at Kennedy Airport, thrown into solitary confinement in Brooklyn, denied proper legal counsel, grilled and then “rendered” by the Bushites to a Syrian prison. He was held there for 10 months in a rat-infested dungeon and brutally tortured. Finally, finding that he had no connection to terrorism, the Syrians released him.
Arar sued the U.S. government for knowingly sending him to a torture chamber. In February, a federal judge blocked Arar’s case without even hearing it. Caving in to Bush’s claim of supreme executive power, the judge ruled that extraordinary rendition is a foreign-policy matter that the courts cannot review.
TORTURE. “We do not torture,” says George W. in yet another bald-faced lie. Actually, he and his henchmen have bent themselves into contortions trying to assert that the commander-in-chief does, indeed, have the inherent right to torture suspects in U.S. custody. In 2002, when he learned that Afghan detainees were being abused in violation of the Geneva Conventions and our own War Crimes Act, Bush did not order the mistreatment to stop. Instead, he signed an order stating, “I have the authority under the Constitution to suspend Geneva.” He might as well have shouted, “I am the king!”
A year later, a White House memo tried to redefine torture, imperiously declaring that only gross brutality that causes “organ failure, impairment of bodily function or even death” can be called torture. John Yoo, the lawyer who has crafted many of Bush’s claims of expansive executive authority, even argues that it would not be unlawful torture for a president to order that the testicles of a detainee’s child be crushed. “I think it depends on why the president thinks he needs to do that,” says Yoo.
Human-rights groups report that more than 100 captives have died while being tortured by executive-branch interrogators. “We do not torture?” Then why did Bush and Cheney fight so ferociously last year to kill Sen. John McCain’s bill that would ban our government from using torture? The White House pleaded, threatened, cajoled and demanded that Congress at least exempt the CIA. Only when the ban passed both houses by veto-proof margins did Bush appear to give in, even publicly hugging McCain in a gesture of concession.
But when he signed the bill on Dec. 30, with Congress and the media out of town on holiday, Bush quietly added a “signing statement,” augustly proclaiming that he retains the right to ignore the ban whenever he thinks it conflicts with his inherent authority as commander-in-chief. The Constitution clearly says that Congress — and only Congress — is empowered “to make all laws.” Yet this president, who whines that “liberal” judges keep stretching the Constitution beyond the strict words of the founders, says that he can rewrite America’s laws by interpreting them to mean what he wants them to mean.
If Bush can spy illegally, arrest citizens and throw away the key, sanction torture, lie, make his own laws and not be held accountable, then what can’t he do? More next month.