Bush Isn’t Ending Domestic Spying. Only Due Process.
Pierre Tristam/Candide’s Notebooks, January 18, 2007
The National Security Agency's ears in Yorkshire, England: Still listening
The question is, do you trust them? Do you trust an administration that has spent the last six years deceiving, circumventing, lying, inventing, blocking, denying, flouting, condescending about every major and many minor matters of state foreign and domestic, from Medicare to faith-based initiatives to WMDs to war in Iraq and Afghanistan to Iranian nukes to due process to torture to illegal wiretapping to snooping into bank records and private mail and left-wing demonstrators to who-knows-what-and-who else (as we’ll find out in coming years)—do you trust such an administration suddenly to change course and abide by the law, as it says it will? I don’t, although that’s besides the point. The point is that the Bush administration has also spent the last six years establishing the infrastructure of a shadow government to the point that it no longer needs to evade the law. It has its own. And now that it does, it can offer up for public consumption the pretense of abiding by the law as we know it. It’s the ultimate circumvention, the ultimate show of contempt. Let me explain.
On Wednesday, Alberto Gonzales, the Attorney General and Albert Speer to Bush’s architecture of selective despotism, informed the Senate Judiciary Committee [see the full letter here] that the Terrorism Surveillance Program, so called, will not be renewed. That’s the “program” the New York Times outed on Dec. 16, 2005, when it informed us that “Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.” Subsequent reporting revealed that the snooping was vast, sweeping and hardly restricted to terrorism suspects: If millions of Americans’ foreign communications by email or by phone were being tapped, that presumed, by the president’s own contention that only “terrorism suspects” were under surveillance, that millions of people in the United States were potential terrorists, as well as the millions abroad on the receiving or sending end of the communications. Out of those millions, how many have actually proven to be so? How many have been arrested? How many plots uncovered? To date, zero. That we know of, anyway. The NSA has been on a shadow chase. Or maybe not exactly: It’s been doing what totalitarian regimes have been doing since the creation of totalitarianism: spying on its own citizens for the sake of spying.
The Attorney General says the administration will let the Foreign Intelligence Surveillance Court authorize government targets of wiretaps from now on. But let’s ask ourselves. What’s the legal process for? It’s to ensure that suspects who may eventually be brought to trail are afforded due process. To prevent miscarriages of justice. To protect the citizenry from undue and illegal intrusions, none of which would, if prosecutors (or the government) are abiding by the process, would hold up in court should it come to that. But what if the Bush administration no longer needs the court system, as in fact it no longer does regarding its “enemy combatants” at Guantanamo and elsewhere? Last December the President signed an order (that Gonzales relayed to the federal judiciary) that essentially ends habeas corpus for Guantanamo inmates and foreigners in “enemy combatant” designations. These individuals are not outside the law. They’re outside the norms of what it is to be an individual. They’re non-persons, existing only in so far as the Bush administration allows them to exist. They’ll never see a courtroom, if the administration can help it.
So it goes, or so it will, with any other terrorism suspect. The notion that the administration will continue to spy on Americans and foreigners as zealously as it has since 2001 isn’t a matter of cynicism, it isn’t a conclusion arrived at by mistrust, but by the logic of the administration’s own precedents and public pronouncements. In Bush’s mind, designating an individual an “enemy combatant” is his prerogative and his alone. Thanks to the Supreme Court’s continued (and legally cowardly rather than deferential) refusal to decide the legality of the “enemy combatant” designation, it may not be questioned. It may not be overruled. An enemy combatant has no legal rights. An enemy combatant will not have a day in court. Therefore, the procedural legality of any “evidence” gathered en route to seizing an “enemy combatant” and designating him as such is irrelevant. No one will check, no one will know, no one will have the right to know. The NSA can carry on as before. The Bush administration spent the last six years putting in place what it’s now taking advantage of, with impunity. Gonzales’s letter to the Senate Intelligence Committee is a sort of icing on Bush’s cake, a final snub in the form of a flattering concession. It is not at all what The Times called it — “what appears to be a concession to its critics.”
One other point. Gonzales writes that “The President is committed to using all lawful tools to protect our Nation from the terrorist threat, including making maximum use of the authority provided by FISA and taking full advantage of developments in the law.” What “developments in the law,” if not the self-fulfilling developments that pass for law but are nothing more than presidential signing statements that skirt the law—those signing statements, also an illegal manipulation of an old and once benign tradition, where the president announces exactly what parts of a law he will follow, and what parts he won’t. So should there be an issue of a suspect risking eventual appearances before a judge, and needing procedural whitewash, the administration has, through Gonzales’s words and Bush’s deeds, the mechanism in place to evade exactly what it said on Wednesday it would no longer evade.
It’s telling that when the Times outed the spying program, the reactionaries reacted more angrily against the Times, which had done nothing illegal and indeed provided one of journalism’s rare public services in this war on terror, than they did against a government brazenly, needlessly breaking the law. It’s also probable that had the Times not revealed the spying program, the administration would have carried on with it heedlessly, and been encouraged to further expand its totalitarian tentacles. As it is, it may very well be doing both regardless of Gonzales’s announcement on Wednesday. As it is, we don;t know what else it's doing that has yet to be revealed.
You have to give it to the Dear Leader. Craftiness is his administration’s only nature. This latest ploy is more than Rovian. It’s Jovianly so: a coup, and the clearest admission to date that, first, this is not about terrorists (since not a single one has been stopped or arrested thanks to the administration’s lawbreaking). And second, that the law is so much window dressing for an administration that, at this rate—since it would be a shame to give up all that it’s worked so hard to destroy—the only thing left for it to figure out is how to stay in power when the Dear Leader’s second term ends. Constitutionally, anyway.