This Call May Be Monitored ...

[Guest guest]

http://www.truthout.org/docs_2005/121805Z.shtml

 

 

This Call May Be Monitored ...

The New York Times | Editorial

 

Sunday 18 December 2005

 

On Oct. 17, 2002, the head of the National Security Agency, Lt.

Gen. Michael Hayden, made an eloquent plea to a joint House-Senate

inquiry on intelligence for a sober national discussion about whether

the line between liberty and security should be shifted after the 9/11

attacks, and if so, precisely how far. He reminded the lawmakers that

the rules against his agency's spying on Americans, carefully written

decades earlier, were based on protecting fundamental constitutional

rights.

 

If they were to be changed, General Hayden said, " We need to get

it right. We have to find the right balance between protecting our

security and protecting our liberty. " General Hayden spoke of having a

" national dialogue " and added: " What I really need you to do is talk

to your constituents and find out where the American people want that

line between security and liberty to be. "

 

General Hayden was right. The mass murders of 9/11 revealed deadly

gaps in United States intelligence that needed to be closed. Most of

those involved failure of performance, not legal barriers.

Nevertheless, Americans expected some reasonable and carefully

measured trade-offs between security and civil liberties. They trusted

their elected leaders to follow long-established democratic and legal

principles and to make any changes in the light of day. But President

Bush had other ideas. He secretly and recklessly expanded the

government's powers in dangerous and unnecessary ways that eroded

civil liberties and may also have violated the law.

 

In Friday's Times, James Risen and Eric Lichtblau reported that

sometime in 2002, President Bush signed a secret executive order

scrapping a painfully reached, 25-year-old national consensus: spying

on Americans by their government should generally be prohibited, and

when it is allowed, it should be regulated and supervised by the

courts. The laws and executive orders governing electronic

eavesdropping by the intelligence agency were specifically devised to

uphold the Fourth Amendment's prohibition of unreasonable searches and

seizures.

 

But Mr. Bush secretly decided that he was going to allow the

agency to spy on American citizens without obtaining a warrant - just

as he had earlier decided to scrap the Geneva Conventions, American

law and Army regulations when it came to handling prisoners in the war

on terror. Indeed, the same Justice Department lawyer, John Yoo, who

helped write the twisted memo on legalizing torture, wrote briefs

supporting the idea that the president could ignore the law once again

when it came to the intelligence agency's eavesdropping on telephone

calls and e-mail messages.

 

" The government may be justified in taking measures which in less

troubled conditions could be seen as infringements of individual

liberties, " he wrote.

 

Let's be clear about this: illegal government spying on Americans

is a violation of individual liberties, whether conditions are

troubled or not. Nobody with a real regard for the rule of law and the

Constitution would have difficulty seeing that. The law governing the

National Security Agency was written after the Vietnam War because the

government had made lists of people it considered national security

threats and spied on them. All the same empty points about effective

intelligence gathering were offered then, just as they are now, and

the Congress, the courts and the American people rejected them.

 

This particular end run around civil liberties is also

unnecessary. The intelligence agency already had the capacity to read

your mail and your e-mail and listen to your telephone conversations.

All it had to do was obtain a warrant from a special court created for

this purpose. The burden of proof for obtaining a warrant was relaxed

a bit after 9/11, but even before the attacks the court hardly ever

rejected requests.

 

The special court can act in hours, but administration officials

say that they sometimes need to start monitoring large batches of

telephone numbers even faster than that, and that those numbers might

include some of American citizens. That is supposed to justify Mr.

Bush's order, and that is nonsense. The existing law already

recognizes that American citizens' communications may be intercepted

by chance. It says that those records may be retained and used if they

amount to actual foreign intelligence or counterintelligence material.

Otherwise, they must be thrown out.

 

President Bush defended the program yesterday, saying it was

saving lives, hotly insisting that he was working within the

Constitution and the law, and denouncing The Times for disclosing the

program's existence. We don't know if he was right on the first count;

this White House has cried wolf so many times on the urgency of

national security threats that it has lost all credibility. But we

have learned the hard way that Mr. Bush's team cannot be trusted to

find the boundaries of the law, much less respect them.

 

Mr. Bush said he would not retract his secret directive or halt

the illegal spying, so Congress should find a way to force him to do

it. Perhaps the Congressional leaders who were told about the program

could get the ball rolling.

 

-------