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Timothy Naftali

Timothy Naftali

Posted: December 19, 2005 01:13 PM

Bush and the NSA spying scandal


At today's news conference, President Bush restated his earlier acknowledgement that he had authorized a secret program to spy on Americans without any judicial review. Blind to history, Bush accepted the arguments of his alpha-male Justice Department that Article 2 of the Constitution allows presidents to violate civil liberties in times of national emergency. We have been down this unhappy road before.

Between 1952 and 1973, a series of US presidents, of both parties, authorized a secret CIA mail-opening program that systematically violated civil liberties.US mail addressed to China or the Soviet Union was opened at CIA facilities in New York and San Francisco without any warrants. Known as HTLingual this program came to an end when Director of Central Intelligence William Colby undertook a housecleaning of the CIA's illegal programs. The public learned about the program the next year thanks to a front-page New York Times piece by Seymour Hersh. One key difference from the current political climate is that in the Cold War no one of consequence tried to argue that warrantless monitoring of Americans is legal. Participants in HTLingual understood that the program violated the Fourth Amendment of the Constitution (the unreasonable search and seizure amendment) and the Ford administration distanced itself from the program once it was revealed.

The revelations of HTLingual and the FBI's broad program of wiretapping members of the New Left and the civil rights movement led to the Foreign Intelligence Surveillance Act system that President Bush today implied is too slow to deal with terrorists. Since 1978, when the FISA court opened, 19,000 requests for warrants have been made and only a handful rejected. The court meets in secret and theoretically around the clock and there is also a provision for retroactive warrants for fast-moving cases. The problem with FISA pre-9/11 was not the system itself but the way in which the FBI chose to use it. Under FISA, it is the FBI that must make formal requests for secret warrants. As the case of Zacharias Moussaoui made clear [the extremist who was jailed in August 2001 after trying to learn how to fly a 747 in Minnesota], FBI lawyers were more hesitant in requesting warrants for persons linked to terrorist organizations that did not have state sponsors, though the law permitted those warrants. Today the president assured Americans that all of the people monitored under the NSA program have links to al Qaeda, so a FISA warrant would be automatic for them, in any case.

The President has tried to defend the NSA program as a necessary tool in the war on Islamic extremism and criticizes the press for revealing this to our enemies. But the only way this secret program could be more effective against al Qaeda than the FISA system would be if al Qaeda had a mole reporting from within the FISA system or in the FBI on whose cellphones and email were being monitored. Meanwhile this secret program undermines the checks and balances that the Founders believed were essential for liberty. The HTLingual program ultimately opened the mail of Bella Abzug, Linus Pauling, John Steinbeck, Martin Luther King, Edward Albee and Hubert Humphrey: hardly potential Soviet agents. Indeed, the program did not identify a single Soviet agent in its twenty-one year run.

A key goal of the terrorists is to destroy our constitutional system. Our leaders should not be helping them. What makes the current form of executive overreaching particularly unsettling is that unlike the Cold Warriors, who understood what they were doing was wrong and placed some limits on their secret programs, our present leadership is operating under an expansive theory that the president can do what he pleases to "protect " us, including denying citizens their day in court, the torture of suspects and now the monitoring of our private communications. The question now is whether Congress or the Courts are prepared to fight back as they did thirty years ago and how they will do it. The political backlash in the late 1970s also had its excesses which hurt intelligence work and created a passive culture within the FBI. In the 1990s, for example, the FBI was less effective at collecting on Muslim extremists because of this. The Bush administration has irresponsibly set the stage for what may be another painful bout of national introspection, raising doubts about our own commitment to democracy. This was all so unnecessary and only hurts the war effort. Sadly and ironically, the Bush administration's executive overstretch may ultimately have the unintended effect of restoring timidity to the intelligence community at a time when we can least afford it.

The president said in his speech last night that we should transcend partisanship on Iraq. Well, civil liberties are not a partisan issue, either.They are the most American of issues. The NSA program violates the spirit of who we are and there is no wartime intelligence justification for it. It is a symbol of presidential arrogance.