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The Big Wiretap By RAY McGOVERN

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Fri, 13 Jan 2006 15:40:11 -0800 (PST)

C Punch-The Big Wiretap By RAY McGOVERN

 

 

 

The Big Wiretap

Why Run Around the Low-Hurdle of FISA?

By RAY McGOVERN

Former CIA analyst

 

http://www.counterpunch.org/mcgovern01112006.html

 

 

If you were Christmas shopping on December 19, you may have missed an

important press conference. Attorney General Alberto Gonzales and

Deputy Director of National Intelligence Gen. Mike Hayden answered

questions about eavesdropping on Americans by the National Security

Agency, which Hayden directed from 1999 to 2005, in violation of the

Foreign Intelligence Surveillance Act (FISA).

 

More Kabuki dance than press conference, the event was not given much

play in the media. However, the implications for privacy-and for our

constitutional system of checks and balances-are immense. We do well

to explore those implications.

 

 

As long as he read from his script, Attorney General Gonzales did just

fine with the press on Dec. 19. He conceded that FISA requires a court

order to authorize the surveillance the president ordered NSA to

undertake. But then he hammered home the administration's " legal

analysis; " namely, the twin argument that Congress' post 9/11

authorization of force and the president's power as commander in chief

trump the legal constraints of FISA.

 

 

 

Spilling the Beans

 

When the reporters' questions began, Gonzales faltered and unwittingly

got down to the crux of the matter. Asked why the administration

decided to flout rather than amend FISA, Gonzales said:

 

 

" We have had discussions with Congress...as to whether or not FISA

could be amended to allow us to adequately deal with this kind of

threat, and we were advised that that would be difficult, if not

impossible. "

 

 

So they went ahead with the new eavesdropping program anyway.

 

 

 

Gen. Hayden's remarks were equally intriguing: He conceded that the

special program authorized by the president was " more aggressive than

would be traditionally available under FISA, " but stressed repeatedly

that the new program deals only with international calls for short

periods of time. In other words, Hayden implied, U.S. citizens are

monitored only sometimes-and just a little, so we are dealing with

tiny incompatibilities with the FISA law, and, besides, the president

has said he has the authority anyway.

 

 

 

FISA Flexible

 

Hayden and Gonzales both stressed the need for " speed and agility. "

But, as Lyndon Johnson was fond of saying, " That dog won't hunt. " The

FISA law contains intentionally flexible provisions designed to

provide speed and agility in expediting emergency requests. The law

grants the attorney general enormous power and discretion to authorize

secret " emergency " electronic surveillance and physical searches for

up to 72 hours, before any court order is granted. No court order at

all is required if the surveillance is terminated before the 72-hour

period ends.

 

The FISA court itself may be the most expensive rubber stamp in

government. Between 1978 and 2002, the court approved almost every one

of the 15,000 search warrant requests, and it continues to approve 99

percent of requests.

 

So why did the Bush administration order NSA to skirt the FISA law?

Could it be because it was carefully crafted not only to give

government wide latitude to move quickly, but also to protect

citizens' Fourth Amendment rights to freedom from illegal search and

seizure? This remains the $64 question. All the likely answers are

deeply troubling.

 

 

 

Is it Simply Power-Grab and Chutzpah? ...

 

The most cynical and, I fear, the most persuasive answer can be

gleaned from Vice President Cheney's recent open assertion-supported,

no doubt, by a stack of in-house legal opinions, that in war time the

president " needs to have his powers unimpaired. " As noted above, on

Dec. 19, Gonzalez invoked the " inherent authority under the

Constitution " of the commander-in-chief, as well as the equally

ludicrous claim that Congress' authorization of war after 9/11 trumps

FISA-a claim that even the regime-friendly Washington Post has termed

" impossible to believe. "

 

 

 

Ludicrous, but not funny. These extreme views are the same ones that

underpin the president's decision to flout international and U.S.

criminal law by approving practices like torture, until now almost

universally banned by civilized societies. The answer may be

simple- " imperial hubris, " one might call it. And if-as seems to be the

case-senior leaders like Colin Powell meekly acquiesce in torture and

Gen. Mike Hayden in illegal eavesdropping, shame on them. This would

merely show, once again, that absolute power truly does corrupt

absolutely-indeed, that even closeness to absolute power can.

 

 

 

.... or Is It Physics and Volume?

 

At the press conference on Dec. 19, the attorney general issued a

pointed reminder that there have been " tremendous advances in

technology " since FISA was passed in 1978. He thus hinted that the

problem is largely a technological one-a function of the availability

of new, highly sophisticated technologies and the physics of the

challenge NSA faces in dealing with the huge volume of intercept

material collected. Recent press reports on the volume of

communications being monitored by NSA suggest that the number is so

high as to be technically or practically impossible to seek approval

of as individual FISA " emergencies, " as the law requires. Consistently

high numbers of monitored communications could have trouble passing

muster as " emergencies " even at the docile FISA court, for the

exceptions would quickly swallow the rule.

 

 

 

But if that were the problem, why did the administration not try to

amend the law or pass a new one? Is that not what government lawyers

are for; i.e., to devise ways to make such things legal, if they can

persuade Congress to go along? And in the post 9/11 atmosphere, when

the draconian measures in the so-called Patriot Act were passed so

easily, were not the prospects excellent that Congress would approve?

 

The inescapable conclusion is that what the authorities sought were so

far-reaching that even the post 9/11 Congress would have balked. As

Attorney General Gonzales has indicated, initial soundings on the Hill

indicated that the prospect was poor for approval of what would have

been a bold request for vacuum-cleaner-type authority for NSA to suck

up communications-including those to and from Americans-from wires and

the ether. That appears to have been the rub-that, plus deep

reluctance to invite any congressional attention, much less scrutiny,

to the program. All this would help explain why there is no sign of

any serious effort on the administration's part to amend the law.

Instead, administration officials fell back on the " anyway "

rationalization; i.e., the notion pushed by top administration lawyers

that the president has the power to authorize eavesdropping anyway.

 

 

 

Concerns

 

The vast quantity of communications reportedly intercepted by NSA

under this special program (New York Times reporter James Risen says

" roughly 500 people in the U.S. every day over the past three or four

years " ) makes suspect the president's claim that all of the monitored

communications have some link to al-Qaeda or other terrorists. If he

is telling the truth, we are indeed in serious trouble.

 

 

 

A primary concern is that, among the groups of American citizens most

likely to be sucked up by the NSA's vacuum cleaner-because of the

nature of their work and their international calls/contacts-are

members of Congress and journalists. A key question that raises its

ugly head is this:

 

 

 

If hundreds of calls and e-mails involving Americans are being

intercepted each and every day, and juicy tidbits are learned about,

say, prominent officials or other persons, there will be an almost

irresistible temptation to make use of this information. Former FBI

special agent Coleen Rowley who for many years monitored

court-authorized electronic surveillances and wiretaps relating to

organized criminal and drug conspiracy groups, recently underscored

how much one can learn about someone by listening in on his/her

private communications. She reminds us that the blackmail potential is

clear.

 

 

 

What if some dirt could be dredged up, for example, on Arlen Specter,

chair of the Senate Judiciary Committee? If some embarrassing material

could be unearthed, might he be persuaded to drop his play to hold

hearings on the eavesdropping program?

 

Ample Precedent for Blackmail

 

For those of you with no trace of gray in your hair, please know that

federal government has a long history of using such monitoring and

break-in authority for such purposes. J. Edgar Hoover was adept at

using information so acquired not only to pursue those he suspected of

Communist or " Un-American " activities, but also to maintain his power

and influence for 47 years over Presidents, members of Congress, and

other power brokers. The FBI's COINTELPRO activity's use of such

information to harass and discredit Dr. Martin Luther King, Jr. is a

particularly glaring example of such abuse. And Nixon's access to such

information gave him the inside track on how to neutralize those on

his long " enemies list. "

 

Think about it. Would you trust a Karl Rove, a Dick Cheney, an Elliot

Abrams, a Roberto Gonzales, an I. Lewis Libby, a David Addington, or a

John Bolton with such information? With the obsequious example set by

Gen. Hayden, no director of NSA is likely to keep it from them. What

might they be likely to do with it?

 

Abuse of private information can be even more dangerous than the loss

of the personal privacy that so many say they are willing to trade for

a bit more security. Rather, such abuse constitutes serious trammeling

of civil liberties and-still worse-can tip the precarious balance of

constitutional checks and balances. It was, after all, precisely

because of such abuses that the FISA law was passed in the first place.

 

Ray McGovern works for Tell the Word, the publishing arm of the

ecumenical Church of the Saviour in Washington, DC. He is on the

Steering Group of Veteran Intelligence Professionals for Sanity

(VIPS), and has a chapter " Sham Dunk: Cooking Intelligence for the

President " in the recently published collection on the Iraq war,

Neo-CONNED Again!

 

A shorter version of this article has appeared on tompaine.com.

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