So let’s put this all together. You probably heard over the last few weeks that the government has been spying on its citizens – without warrants.
That might sound bad enough on its own, but it isn’t just that this was going on without our knowing it; it’s that our president lied to us about it not just once or twice, but on several occasions. Not only that, but he misled the American public at a time when he was trying to get re-elected. (“That woman” from the Clinton years doesn’t seem like such a breach of trust in the executive anymore.)
In defending the Patriot Act in 2004, President Bush said repeatedly on the campaign trail that wiretaps under the act require a court order. “Any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” he said on Apr. 20, 2004 in Buffalo, New York. “Nothing has changed, by the way,” he continued. “When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.”
Bush seemed to go out of his way to reassure the public that things were always what they were before. But in fact he had signed a secret executive order in 2001, still in effect, that bypassed these court requirements entirely. Not only that, but he authorized the program personally, according to one Associated Press article, more than three dozen times since then.
Even in December, when Bush was forced to admit the existence of the eavesdropping program, he called it “limited, and I repeat limited,” saying it only affected overseas calls between known or suspected al-Qaeda members. Wrong again, as a New York Times article Dec. 24 reported the surveillance affected all Americans, with the cooperation of America’s telecommunications companies. Worse yet, Bush has said he doesn’t intend to end the program, or at least suspend it while there are questions over its legality.
Only after the fact are we hearing arguments that bypassing courts and Congress in conducting searches on American citizens is OK. It makes you wonder why the New York Times, which sat on the story for more than a year, waited to break this news to us until long after the 2004 election. Even now, the media has merely questioned whether it is an “overreach of executive power.” That’s putting it mildly.
Since the founding of our republic, warrants have been a textbook example of the system of checks and balances between our branches of government. The executive branch, which enforces the law, always had to seek approval from the judicial branch, which issues warrants, before being able to search people’s homes, tap their telephone calls or otherwise invade the privacy that is guaranteed them under the Fourth Amendment.
Defenses of the president’s actions have ranged from self-serving and fear-mongering to the utterly absurd. Attorney General Alberto Gonzales said on Dec. 19, for example, that “speed” was an issue in bypassing the courts. But the fact is the Foreign Intelligence Surveillance Act of Congress of 1978 set up a court specifically for approving foreign intelligence requests. The court, in a reflection of its specialized purpose, rejects very few requests and approves them with deliberate speed.
Another defense of President Bush is that in a time of war, he has powers as commander-in-chief that allow him to go outside the law. Abraham Lincoln, for example, once suspended the right of habeas corpus during the Civil War. But this is the first time such a wide breach of law has been conducted behind the scenes – without public pronouncement or a chance for debate. It is the very definition of unchecked power, a situation that goes completely against the kind of government our founders intended.
In a Dec. 23 article, Washington Post Op-Ed columnist Charles Krauthammer tried to defend the administration’s actions by pointing out that “In 1972 the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups but specifically declined to apply this requirement to snooping on foreign agents.” While that may be true, Bush’s program treats all American citizens as foreign agents, a presumption of guilt that also goes against our nation’s tradition of the rule of law.
It doesn't work
Finally, there is a more practical argument against mass surveillance. An article by Jennifer Granick for Wired News argues that “People with something to hide are adept at speaking in codes. Teenagers tell their parents they are ‘going to the movies’ when they are going to drink beer.” Criminals also know to misspell victims’ names to avoid detection.
Even when spying technologies work, Granick notes, they “inevitably produce an unacceptably high number of false positives” and catch innocent people in their snare. Remember when Yusuf Islam, the former Cat Stevens, was blocked from flying to the U.S. because his name was found in the no-fly database (it was later found to be a typo)?
We are in a time of war, but it is an undeclared war with an indefinite objective and an unknowable end. The question we have to ask ourselves is whether we are willing to surrender our basic civil liberties until a time in the future that we may or may not live to see, and whether the power to suspend those liberties should lie in one man.
Most Americans understand the values their country stands for and have sided with the law. An AP-Ipsos poll released Jan. 7 showed that 56 percent of Americans believe wiretaps, even for suspected terrorists, require a warrant. A Jan. 16 poll shows that Americans may even favor the “I” word – impeachment – by a margin of 52-43 percent (a similar poll six months ago found a reverse result at 42-50).
On Dec. 18, 2000, Bush once joked after a meeting with congressional leaders that “If this were a dictatorship, it'd be a heck of a lot easier, just so long as I'm the dictator.”
No one’s laughing now.
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