The Most Important Question of All in Bush's Domestic Spying Scandal

12/18/2005 02:45 pm ET | Updated May 25, 2011

In the last 72 hours since the revelation that President Bush ordered illegal domestic surveillance operations, we have seen how the Republican spin machine has mastered the art of turning any and all controversies into questions of national security. You know the drill: those who are criticizing Bush's orders are billed as weak, soft on national security, or against domestic efforts to stop terrorism. Meanwhile, Bush is portrayed as the tough fighter of terrorism, willing to make the tough choices to defend America's national security. In short, his crimes are portrayed as badges of honor.

There's just one problem: this isn't a question of whether America supports domestic surveillance operations against terrorists or not. This is a question of whether America supports those operations without requiring a warrant.

The truth is, domestic surveillance operations happen all the time. They are such a part of our culture, they are a regular topic of television shows and movies (think Serpico or Stakeout). But they are also governed by the U.S. Constitution's 4th Amendment, which explicitly protects citizens against "unreasonable search and seizures" and requires the executive branch to obtain a warrant from the objective judiciary branch in order to do surveillance operations.

So the question reporters should be asking the White House isn't why the president thinks there should be domestic efforts to track and stop terrorists. The vast majority of Americans think that. The question reporters should be asking is "Why did the President order domestic surveillance operations without obtaining constitutionally-required warrants?" That is behavior that most Americans who believe in the Constitution likely do not support at all.

Make no mistake about it - this is an especially poignant question considering that, under the Patriot Act's weakened standards, the government can now circumvent the traditional (and more rigorous) judicial system and obtain a warrant directly from a Foreign Intelligence Surveillance Act (FISA) court. Remember, this is a court almost completely skewed in favor of the government. As Slate Magazine correctly noted, getting a warrant from that judge requires "no need for evidence or probable cause" and the judge has almost no authority to reject the government's request for a warrant, unless the government's request are extraordinarily outlandish. It is why, as Josh Marshall reports, the government's own data shows that "in a quarter century, the FISA Court has rejected four government applications for warrants." It is also why Members of Congress of both parties have tried to repeal the Patriot Act sections that allow the administration to use FISA warrants for domestic surveillance.

In his defense, the President has tried to deflect attention by repeatedly saying he needed to order these operations to protect Americans. Fine – but it still doesn't answer the real question. If the surveillance operations he ordered were so crucial and so important to protecting our country, how come he didn't get a warrant? Surely something so critical to our security would have easily elicited a warrant from a FISA court already inclined to issue warrants in the first place, right?

And that gets us right back to the most important question: why would the President deliberately circumvent a court that was already wholly inclined to grant him domestic surveillance warrants? The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so "unreasonable" that even a FISA court would not have granted them.

This is no conspiracy theory - all the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the cold, hard facts that we already know.

Two years ago, the New York Times reported that the administration is using the FBI to "collect extensive information on the tactics, training and organization of antiwar demonstrators." Then, just a few months ago, the Times reported that the FBI "has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." And just this past week, NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of anti-war peace groups. The report noted that the administration had monitored 1,500 different events (aka. anti-war protests) in just a 10-month period.

These are exactly the kind of surveillance operations even a government-tilted FISA court would reject, and it raises yet more questions: Are these anti-war peace groups the targets of Bush's warrantless, illegal surveillance operations? Who else has the President been targeting? Has it been his partisan political enemies a la Richard Nixon? Or has he been invading the privacy of unsuspecting citizens in broad sweeps with no probable cause at all?

The answers to these questions will get us away from the silly and partisan "strong on national security" vs. "weak on national security" and get us to the real questions at hand. This controversy has to do with whether America believes in the Constitution's separation of powers between an executive and a judicial branch – the separation that quite literally differentiates our form of government from any old dictatorship, where when the monarch snaps his fingers, the secret police immediately target the unsuspecting citizen. That's about as un-American as you get – and that's why we need to know whether those who hold high office in this country think they can turn our democracy into their autocracy.