Sunday, January 22, 2006

Bush to Americans: You Have No Privacy

Administration Appears Determined to Spy on Americans over Terrorism, Internet Pornography and Who Knows What Else -- and the Constitution be Damned

By Skeeter Sanders

As an American who's now well past the age of 50, never in a million years would I have thought that after Richard Nixon, we would ever again have a president in the White House during my lifetime more contemptuous of the constitutional right of Americans to disagree with his policies without fear of having their rights violated.

Confronted with massive protests against the Vietnam War in 1970, Nixon ordered a massive police crackdown on anti-war demonstrators in the nation's capital. Thousands were rounded up and arrested in the May Day protests that year. An angry Nixon later approved a plan for greatly expanding domestic intelligence-gathering on anti-war activists by the FBI, CIA and other agencies without court orders.

That this violated the Constitution was made crystal clear when the Supreme Court declared unanimously in 1972 that warrantless wiretaps and other electronic surveillance by the Nixon administration for national security purposes were an impermissible breach of the Fourth Amendment's ban on unreasonable searches and seizures (See my "'Skeeter Bites" blog of December 18).

The justices handed down their ruling in United States v. Plamondon (Listed formally in the high court's archives as United States v. United States District Court for the Eastern District of Michigan, et al.) just two days after the infamous Watergate break-in that ultimately led to Nixon's downfall.

Nixon's obsession with silencing his political opponents -- particularly over the Vietnam War -- ultimately prompted those who worked for him to resort to outright criminality, including the break-in at the Democratic Party headquarters at Washington's Watergate complex in 1972.

The rest, as they say, is history. Indeed, these and other abuses of executive power by Nixon were cited in the second of the three articles of impeachment handed up in Congress against Nixon in 1974. After Nixon's subsequent resignation, I came away with the firm expectation that we would never again have a president who would abuse his authority as recklessly as Nixon did.

Bush Proving to be More Reckless Than Nixon

But three decades later, I've been proven wrong -- in spades. In George W. Bush, not only do we have another president who is abusing his powers and endangering Americans' constitutional rights, but he's doing it with an imperious arrogance that goes far beyond anything that Nixon did. An arrogance that comes dangerously close to Mussolini-style fascism.

After the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, Bush ordered the super-secret National Security Agency to initiate monitoring of Americans' international telephone calls, whether originating in the U.S. or originating abroad. And like Nixon before him, Bush did not seek prior court orders.

This is in clear violation of both the Supreme Court's ruling in the Plamondon case and the law it spawned -- the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978 in response to the widespread abuses by the nation's intelligence community on American citizens during the Nixon era (That the mainstream media have failed to mention the high court ruling angers me to no end. More on that later).

Since exposing this illegal surveillance last month, The New York Times has gone on to expose a massive program of "data mining" literally millions of Americans' phone calls that has gone on for more than four years. And Bush has vowed to continue it, stubbornly insisting that he has the constitutional authority to implement it -- despite the Supreme Court's nearly 34-year-old ruling to the contrary.

Yet instead of warning the president that his warrantless spying program was skating on dangerously thin legal and constitutional ice, Bush's attorney general, Alberto Gonzales, has ordered a criminal investigation to find out who told The Times about it -- ignoring a federal law that protects whistleblowers inside the government who expose government wrongdoing.

That Gonzales' predecessor, John Ashcroft, refused to give his blessing to the warrantless spy program -- which may have been a contributing factor in his decision to step down rather than stay on for Bush's second term -- makes Gonzales' action all the more mind-boggling. He clearly has no respect for Americans' constitutional rights and he must either resign or be impeached.

A President Who Thinks He's Above the Law -- and the Constitution

Rather than admit that it's wrong, the Bush administration has instead ratcheted up its defense of its unconstitutional NSA spying program, with the Justice Department now claiming that the power of the president to gather such intelligence during wartime was well-established and had been practiced by some of the nation's most revered commanders in chief, including Franklin D. Roosevelt.

Gonzales says that the inherent power of the president to order such warrantless surveillance was confirmed and enhanced by Congress after the terrorist attacks of Sept. 11. The attorney general asserts that FISA did not close the door on surveillance that had not been approved by a special court created by that law.

Rubbish, say a growing number of members of Congress -- Republican and Democrat alike -- who flatly declared that they gave the president no such authority when they voted to authorize Bush to use force against al-Qaida and the Taliban regime in Afghanistan who gave sanctuary to Osama bin Laden's terror network.

The lawmakers also point out that the FISA statute contains a provision that requires court approval within 15 days of the launching of electronic surveillance for national security purposes within the borders of the U.S.

To date, there is no record of the FISA court ever approving the NSA wiretaps. None of the court's 10 members have acknowledged approving the program. In fact, Judge James Robinson resigned from the FISA court on December 19 -- two days after the The New York Times' expose -- in protest of the president's action.

Why Won't Media Mention Plamondon Ruling?

The Justice Department's rationale is also constitutional rubbish. Not only has the White House chosen to ignore the fact that Congress -- and only Congress -- has the constitutional authority to declare war (An authority Congress has lacked the political will to execute since 1941), Bush has also chosen to defy the Supreme Court's 1972 Plamondon decision.

Incredibly, in none of the reports on the NSA spying program in the mainstream media to date has there been any mention of the Plamondon ruling. I broke that story on this blog within hours of Bush's December 19 press conference, when the president first claimed that he had the authority to order the warrantless wiretaps. It is a patently false claim.

Why have the mainstream media -- including The Times -- ignored the Plamondon ruling? Bush is claiming an authority that Congress did not give him and a unanimous Supreme Court long ago declared illegal under the Fourth Amendment. What is it going to take to get the mainstream media to wake up and tell the American people that what the Bush administration is doing is unconstitutional?

Of course, all this is coming against the backdrop of Congress heatedly debating an extension of the Patriot Act, which dramatically expanded the government's ability to obtain private data. Bush has been leaning hard on Congress to extend the law permanently, but in the face of the NSA spying scandal, that isn't likely to happen without major changes in the law.

Big Brother Is Watching You On the Internet, Too

If the warrantless NSA spying wasn't bad enough, we've now learned that the Bush administration's snooping isn't limited to telephone calls. Federal investigators have obtained through subpoenas potentially billions of Internet search requests made by millions of Americans using major search engines run by Yahoo Inc., Microsoft Corp. and America Online Inc.

What makes this Internet "data mining" outrageous is that the Justice Department wants to see what Web sites Americans are looking for online as part of an effort to restore an anti-pornography law that the Supreme Court declared unconstitutional.

The controversial Child Online Protection Act (COPA) was adopted in 1998 after a similar law, the Communications Decency Act -- part of the broader Telecommunications Act of 1996 -- was struck down by the high court in 2002 as an unconstitutional breach of the First Amendment rights of Web site operators.

COPA established fines and jail terms for businesses that publish sexually oriented material on the Web that is obscene or offensive, unless they weed out minors by demanding a credit card or other proof of age.

The law was challenged on First Amendment grounds because it makes no distinction between material declared obscene by a court of law -- and thus not protected by the First Amendment -- and material regarded simply as "indecent" or "offensive" based on local community standards but nonetheless are protected by the First Amendment.

In 2004, the Supreme Court upheld an injunction against COPA but sent the case back to a lower court in Pennsylvania -- the same court that struck down the statute two years earlier.

Google Takes a Stand for Internet Privacy

The Justice Department insists that it's not interested in ferreting out the identities of Internet users; only in search trends as part of its efforts to regulate online pornography. But Google, Inc., the world's largest Internet search engine, isn't buying it. Google has refused to comply with the government's subpoena -- and has vowed to wage a "vigorous" legal fight to protect its users' privacy.

The California-based company said in a letter to the Justice Department that a single text query by its users could lead the government to a searcher's identity. For Google to comply with the subpoena "would suggest that we are willing to reveal information about those who use our services. This is not a perception that Google can accept," the company declared.

(In the interest of full disclosure, Google is the parent company of the Blogspot Web site, which hosts The 'Skeeter Bites Report).

Google's decision to fight the subpoena is reminiscent of Verizon Communications Inc.'s refusal in 2003 to comply with a demand by the Recording Industry Association of America to supply it with the names of subscribers to Verizon's Internet service, whom the RIAA suspected of swapping music files in violation of federal copyright laws.

A federal appeals court eventually agreed that the RIAA would have to sue individual file-swappers directly before forcing Verizon to turn over information on them. The Supreme Court declined to intervene in the case.

Is Internet Porn the Target -- Or Is It Really the Blogosphere?

A majority of the Supreme Court justices wrote that the government could save COPA if it showed that the rules were more effective than Internet content filters at balancing the need to keep pornography from children against the First Amendment rights of Web site operators.

But what about the privacy rights of adult Internet users who search for and access those sites? These search engines maintain a massive database that reaches into the most intimate details of Internet users' lives: what they search for, what they read, what they listen to, what worries them, what they enjoy.

And I'm not convinced that Internet pornography is the only target for the government sticking its nose into Americans' Web-surfing habits. Many bloggers, including Yours Truly, use search engines to find much of the source material for their blogs. And it's no secret that many bloggers -- again, including Yours Truly -- have been highly critical of the Bush administration.

It's hard for me to believe that the Bush administration isn't embarking on a fishing expedition to silence or intimidate its critics in the blogosphere, particularly over Iraq and the war on terror; it has displayed a hostility toward critics of the war with a ferocity rivaling Nixon's. I wouldn't be surprised if Bush is maintaining his own "enemies list" of domestic critics; I wouldn't be surprised if I'm on that list.

White House Stooping to Joe McCarthy-Style Rhetoric Against War Critics

Indeed, the White House has singled out opponents of the war for the type of vituperative scorn that Sen. Joe McCarthy heaped on alleged "communists" in the 1950s. Witness Karl Rove's intemperate blast last Friday against the Democrats for their criticisms of Bush's handling of Iraq and the NSA surveillance program.

"At the core, we are dealing with two parties that have fundamentally different views on national security," Rove said at the winter meeting of the Republican National Committee. "Republicans have a post-9/11 worldview and many Democrats have a pre-9/11 worldview. That doesn't make them unpatriotic -- not at all. But it does make them wrong -- deeply and profoundly and consistently wrong.

Sounds an awful lot like McCarthy's tirades against critics of his anti-communist witch-hunts. Considering that he's still under a federal criminal investigation for his alleged role in the CIA leak scandal, Rove should have kept his mouth shut.

But Team Bush has apparently failed to learn from the abuses of either McCarthy or Nixon. Those who fail to learn from history are condemned to repeat it -- and those who are well-versed in American history know what happened to McCarthy and Nixon.


Volume I, Number 8
Copyright 2006, Skeeter Sanders. All rights reserved.

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