http://www.nytimes.com/2006/01/29/opinion/29sun1.html?_r=3&hp=&pagewanted=print&oref=slogin
The New York Times
January 29, 2006
Editorial
A bit over a week ago, President Bush and his men promised
to provide the legal, constitutional and moral justifications for the sort of
warrantless spying on Americans that has been illegal for nearly 30 years.
Instead, we got the familiar mix of political spin, clumsy historical
misinformation, contemptuous dismissals of civil liberties concerns, cynical
attempts to paint dissents as anti-American and pro-terrorist, and a couple of
big, dangerous lies.
The first was that the domestic spying program is carefully
aimed only at people who are actively working with Al Qaeda, when actually it
has violated the rights of countless innocent Americans. And the second was
that the Bush team could have prevented the 9/11 attacks if only they had
thought of eavesdropping without a warrant.
•
Sept. 11 could have been prevented. This is breathtakingly
cynical. The nation's guardians did not miss the 9/11 plot because it takes a
few hours to get a warrant to eavesdrop on phone calls and e-mail messages.
They missed the plot because they were not looking. The same officials who now
say 9/11 could have been prevented said at the time that no one could possibly
have foreseen the attacks. We keep hoping that Mr. Bush will finally lay down
the bloody banner of 9/11, but Karl Rove, who emerged from hiding recently to
talk about domestic spying, made it clear that will not happen — because the
White House thinks it can make Democrats look as though they do not want to
defend America. "President Bush believes if Al Qaeda is calling somebody
in America, it is in our national security interest to know who they're calling
and why," he told Republican officials. "Some important Democrats
clearly disagree."
Mr. Rove knows perfectly well that no Democrat has ever said
any such thing — and that nothing prevented American intelligence from
listening to a call from Al Qaeda to the United States, or a call from the
United States to Al Qaeda, before Sept. 11, 2001, or since. The 1978 Foreign
Intelligence Surveillance Act simply required the government to obey the
Constitution in doing so. And FISA was amended after 9/11 to make the job much
easier.
Only bad guys are spied on. Bush officials have said the
surveillance is tightly focused only on contacts between people in this country
and Al Qaeda and other terrorist groups. Vice President Dick Cheney claimed it
saved thousands of lives by preventing attacks. But reporting in this paper has
shown that the National Security Agency swept up vast quantities of e-mail
messages and telephone calls and used computer searches to generate thousands
of leads. F.B.I. officials said virtually all of these led to dead ends or to
innocent Americans. The biggest fish the administration has claimed so far has
been a crackpot who wanted to destroy the Brooklyn Bridge with a blowtorch — a
case that F.B.I. officials said was not connected to the spying operation
anyway.
The spying is legal. The secret program violates the law as
currently written. It's that simple. In fact, FISA was enacted in 1978 to avoid
just this sort of abuse. It said that the government could not spy on Americans
by reading their mail (or now their e-mail) or listening to their telephone
conversations without obtaining a warrant from a special court created for this
purpose. The court has approved tens of thousands of warrants over the years
and rejected a handful.
As amended after 9/11, the law says the government needs
probable cause, the constitutional gold standard, to believe the subject of the
surveillance works for a foreign power or a terrorist group, or is a lone-wolf
terrorist. The attorney general can authorize electronic snooping on his own
for 72 hours and seek a warrant later. But that was not good enough for Mr.
Bush, who lowered the standard for spying on Americans from "probable
cause" to "reasonable belief" and then cast aside the bedrock
democratic principle of judicial review.
Just trust us. Mr. Bush made himself the judge of the proper
balance between national security and Americans' rights, between the law and
presidential power. He wants Americans to accept, on faith, that he is doing it
right. But even if the United States had a government based on the good
character of elected officials rather than law, Mr. Bush would not have earned
that kind of trust. The domestic spying program is part of a well-established
pattern: when Mr. Bush doesn't like the rules, he just changes them, as he has
done for the detention and treatment of prisoners and has threatened to do in
other areas, like the confirmation of his judicial nominees. He has
consistently shown a lack of regard for privacy, civil liberties and judicial
due process in claiming his sweeping powers. The founders of our country
created the system of checks and balances to avert just this sort of imperial
arrogance.
The rules needed to be changed. In 2002, a Republican
senator — Mike DeWine of Ohio — introduced a bill that would have done just
that, by lowering the standard for issuing a warrant from probable cause to
"reasonable suspicion" for a "non-United States person."
But the Justice Department opposed it, saying the change raised "both
significant legal and practical issues" and may have been
unconstitutional. Now, the president and Attorney General Alberto Gonzales are
telling Americans that reasonable suspicion is a perfectly fine standard for
spying on Americans as well as non-Americans — and they are the sole judges of
what is reasonable.
So why oppose the DeWine bill? Perhaps because Mr. Bush had
already secretly lowered the standard of proof — and dispensed with judges and
warrants — for Americans and non-Americans alike, and did not want anyone to
know.
War changes everything. Mr. Bush says Congress gave him the
authority to do anything he wanted when it authorized the invasion of
Afghanistan. There is simply nothing in the record to support this ridiculous
argument.
The administration also says that the vote was the start of
a war against terrorism and that the spying operation is what Mr. Cheney calls
a "wartime measure." That just doesn't hold up. The Constitution does
suggest expanded presidential powers in a time of war. But the men who wrote it
had in mind wars with a beginning and an end. The war Mr. Bush and Mr. Cheney
keep trying to sell to Americans goes on forever and excuses everything.
Other presidents did it. Mr. Gonzales, who had the
incredible bad taste to begin his defense of the spying operation by talking of
those who plunged to their deaths from the flaming twin towers, claimed
historic precedent for a president to authorize warrantless surveillance. He
mentioned George Washington, Woodrow Wilson and Franklin D. Roosevelt. These
precedents have no bearing on the current situation, and Mr. Gonzales's
timeline conveniently ended with F.D.R., rather than including Richard Nixon,
whose surveillance of antiwar groups and other political opponents inspired FISA
in the first place. Like Mr. Nixon, Mr. Bush is waging an unpopular war, and
his administration has abused its powers against antiwar groups and even those
that are just anti-Republican.
•
The Senate Judiciary Committee is about to start hearings on
the domestic spying. Congress has failed, tragically, on several occasions in
the last five years to rein in Mr. Bush and restore the checks and balances
that are the genius of American constitutional democracy. It is critical that
it not betray the public once again on this score.
Copyright 2006The New York Times Company
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