08/08/2007 08:26 am ET Updated May 25, 2011

FISA and the Caterpillars of the State

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." - Amendment Four

There it is again. That pesky Fourth Amendment. It's so straightforward and unequivocal, you need to be an experienced constitutional lawyer to not understand that it says: 1. No search and seizure without a warrant. 2. No warrants issued without probable cause, supported by oath or affirmation and 3. Warrants must specify the place to be searched or the persons or things to be seized. I've heard from some of the more sophisticated legal beagles that the amendment only applies to "unreasonable searches." Linguistic naïf that I am, I understand it to say that reasonable searches are those that fulfill the three requirements set out in the Constitution. Unreasonable searches are those that don't -- say, NSA data mining operations scanning millions of phone calls and e-mail looking for certain secret words and phrases that every day legitimate patriotic Americans don't use, nasty words and phrases like, "bomb," or "stupid, self-dealing, violent vice president," or "Hey Abdullah, how's it going? How's the wife and kidlets?" (Of course, I'm just guessing here, because the real secret words are, like, secret. "Say the secret word and the duck comes down and renders you to Syria," says Groucho, as he flicks the ash off his CIA Surplus exploding Cuban cigar.

On Friday Congress moved to legalize the administration's unconstitutional wire-tapping and assorted other so-secret-we-don't-know-what-they-are anti-terrorism measures. A happy to no longer be an outlaw president signed the bill, so that we now have an official, unconstitutional law governing the president's ability to do whatever the hell he wants. What a relief. Congress legally passing laws the Constitution says in plain English Congress can't pass seems a bit iffy, but I guess five ninths of the Supreme Court can sort that out.

This is making me paranoid. But, I was reassured Tuesday morning by former Reagan Justice Department official, David Rifkin. He was on CSPAN debating Glen Greenwald, while I was doing my daily penance on the stationary bicycle. Rifkin told me not to worry, because the dedicated career professionals at the NSA and the Department of Justice are not interested in ordinary American citizens, who don't talk to known, nefarious foreign terrorists. After all, Rifkin said, the Attorney General is the key player in deciding how the terrorism surveillance program is run. Why would he want to do anything other than protect me from murderous bad guys?

Then I remembered who the Attorney General actually is, and that got me thinking scary thoughts all over again. Despite my best efforts, my mind's eye kept drifting back to that episode in former Attorney General Ashcroft's hospital room -- actually, Greenwald was holding my mind's eyelid up by recalling that whatever it is that the administration was doing was so vile that top Justice Department officials and the Director of the FBI were prepared to resign rather than participate in it.

If an Attorney General as hard right as John Ashcroft threw his post-operative weight against the machine and made it stop, does that mean Rifkin is right? Now that Congress and the president have placed the Constitution outside the law, will our civil liberties be protected by those serious, well-intentioned, professionals at the Justice Department? Here's the rub. Alberto Gonzales was in that hospital room as President Bush's counsel trying to bully Ashcroft into approving an illegal program, and now Ashcroft is gone (and not to be lamented) and Alberto Gonzales is Attorney General and Congress has "legalized" (to the best of its ability, given the constitution thing) an expanded program.

Without having any brief for Ashcroft, I detect a significant structural change at work in this succession. Ashcroft, whatever his faults, came to office with a certain constituency of his own. He'd been elected to the U. S. Senate and served there until losing reelection to a candidate who happened to be dead. He had connections and prospects in the world beyond the Bush Administration. Gonzales came to office with a constituency of one. He is completely the president's creature. Back during the cold war, we had a word for this type of executive creation: apparatchik.

Apparatchik: "1. 1. A member of the APARAT; also, a Communist agent or spy.... 2. A member of a political party in any country, who is responsible for the execution of policy; a functionary of a public or private organization."

Obviously the word is Russian in origin and classically, an apparatchik was a communist functionary, a party man. Interestingly, the Oxford English Dictionary, from which the above definitions were taken, includes as illustration this close-to-home quotation from the Victoria, BC, Daily Colonist of July 5, 1973: "The United States was indeed being pushed in the direction of a police state. The pushers were not mere apparatchiks such as John Dean, but President Nixon and his closest associates."

We are told to relax. The surveillance procedures "legalized" by the FISA Reform Act won't be abused because the administration's interest is only in combating terrorists. Why, on earth would they want to spy on the rest of us? Historically, however, when illegal surveillance has been used -- not only by the Cheka or the Stasi, but also by the Nixon and Bush administrations -- against whom has it been used? "Enemies" -- not of the people, but of the government, of the regime. Watergate was a black bag surveillance operation against whom? The Democratic National Committee. Politically motivated tax audits in the Nixon administrations did not target enemies of America; they targeted enemies of Nixon. Just as selective prosecutions by Gonzales' Justice Department appear to have targeted Democratic office holders and, more ominously, minority groups seeking to exercise the right to vote. These are not abstractions. These are acts, offenses at which the 'trust us' crowd in the White House and its DOJ have already been caught.

So, rather than being reassured by Rifkin's appeal to the intrinsic good will of the bureaucracy, I'm further reminded of how successful the administration has already been in replacing constitutional government by checks and balances with a Chekist Aparat, answerable neither to the governed nor to legal procedure, but to "the party" and Karl Rove's political commissariat. That the department most advanced in this process appears to be the Department of Justice is the least consoling fact of all.

For a long time Mr. Bush and Mr. Cheney reminded me of the sublime cartoon characters, Pinky and the Brain. Two genetically altered lab mice, one of whom -- according to the show's theme song -- is a genius, while the other is insane. Each episode of Pinky and the Brain, chronicles the failure of some disastrous attempt by the Brain to achieve world domination and ends with Pinky, the goofy mouse, asking his Napoleonic associate, "What are we going to do tomorrow, Brain?" to which Brain responds "What do we do every day Pinky? Try to take over the world."

With habeas corpus on the ropes and the Justice Department professionals placed under the supervision of Commissar Rove and his aparat of youths sent over from Pat Robertson's Law School, with, the failed attempt to put Harriet Miers, another Bush dependent, on the Supreme Court, and seeing the strange hold the administration continues to have over Congress, my associations have darkened. I think now of a couple of characters out seventeenth-century drama. London theater goers in 1614, might have heard the situation the framers invented our government to prevent, the situation all too familiar to their experience an invasive Privy Council and its Star Chamber, analyzed in uncanny detail by a disgruntled apparatchik, named Bosola, who describes the two very unpleasant brothers, whose dirty work he carries out, in John Webster's The Duchess of Malfi:

He and his brother are like plum-trees that grow crooked
Over standing-pools; they are rich, and o'erladen with
Fruit, but none but crows, pies, and caterpillars feed
On them. Could I be one of their flattering panders, I
Would hang on their ears like a horseleech, till I were full, and
Then drop off. I pray leave me.
Who would rely upon these miserable dependences, in expectation to
Be advanced tomorrow? What creature ever fed worse, than hoping
Tantalus? nor ever died any man more fearfully, than he that hoped
For a pardon. There are rewards for hawks and dogs,
When they have done us service: but for a soldier that hazards his
Limbs in a battle, nothing but a kind of geometry is his last

Are Bush and Cheney to become our crooked plum trees over standing water, nourishing a government of crows and caterpillars? Their Democratic abettors, including in the FISA vote, my very own Senator Mikulski, would be well advised to read The Duchess of Malfi and meditate on its tragic outcome -- dwelling especially on the astute and self-critical Bosola's unhappy end.

Sixteen Democratic Senators voted with the aparat and against the Constitution on the FISA Reform last Thursday. I cannot guess their reasons for doing so, but here are their names: Bayh, Indiana; Conrad, ND; Casey, PA; Carper, DE; Feinstein, CA; Inouye, Ha; Klobuchar, Minn; Landrieu, La; Lincoln, Ark ; McCaskill, Mo., Mikulski, MD; Nelson, Fla.; Nelson, Ne; Pryor, Ark., Salazar, Co.; Webb, Va.