Lawsuit Against Illegal Wiretaps

We have learned from the New York Times in recent days that thousands of tips may have been passed on each month to the FBI by way of NSA wiretaps and probably some form of data mining (Truthout carries the article; see the first paragraph). If we're talking thousands a month over a period of some four years or so, and if we assume that thousands means at least three thousand a month or thereabouts, we're talking at least somewhere around a 150,000 total that have been sucked into the NSA program and investigated.

Now the self-described whistleblower, Russell Tice (See Interview with NSA Whistleblower), has suggested that millions may have been illegally wiretapped; he also suggests that the computers that are used to gather the information can only analyze to a certain point and therefore human analysts are required to sift through the information before being passed on to the field. If this is correct, then there is a greater body of computer-generated tips (if indeed that is how the tips were generated) that has been viewed by human eyes. This is far greater than the few hundred people the administration said were affected by the wiretaps.

If any number of these allegations about the NSA spying on Americans are true, and the Bush Administration has vaguely admitted some aspects of the warrantless spying are certainly true, then we are talking about a massive violation of the law and a massive violation of privacy. We're also talking about a great deal of money and it will be interesting if this is yet another budget item not specifically authorized by Congress. It also appears to be a great waste of resources that might have been more effectively used elsewhere. But there are other issues as well. There have been reports that John Bolton may have use NSA intercepts to spy on members of the Bush Administration as part of battles within the administration. There have also been reports that our government may have spied on the UN during the runup to the war in Iraq.

Then we have another issue related to the wall that needs to exist between intelligence operations and politics. We saw that wall break down during the Nixon Administration and at times during J. Edgar Hoover's tenure as FBI director. Even if we set aside the abuse of intelligence that took place in order to make a case for war in Iraq, there are signs that there have been abuses of intelligence specifically around political issues in the current administration. Several peaceful anti-war groups, as just one example, have been monitored by the federal government.

There is a lot we still don't know about the extent of the NSA spying program and the issue of oversight, or rather the lack thereof, is one of the more pressing issues. Members of Congress, including some prominent Republicans (such as Arlen Specter), are calling for investigation. Over the last five years, Congress has not done an effective job of investigating much when it involves President Bush. But this is an issue that hits at the heart of who we are as a nation and many people in Washington know it. This investigation has to be real. Already the White House is resisting investigation but we are a nation of laws and no president is above the law. The law, in this case, is the US Constitution, and no president is above that law. President Bush swore an oath to uphold the constitution; we need to be certain that he still respects that oath. If not, there have to be consequences. Republicans in Congress are under enormous pressure to assume their constitutional responsibilities but it's not certain that they can perform adequately.

Already a lawsuit has been filed challenging the legality of Bush's NSA spying program and we will soon see if the judicial branch of government can check the powers of the president:

Two civil liberties groups filed separate lawsuits Tuesday to halt the Bush administration's domestic spying program, charging that the interception of Americans' communications without court warrants is illegal and unconstitutional.

The federal court lawsuits brought by the American Civil Liberties Union in Detroit and the Center for Constitutional Rights in New York are the latest and most prominent legal challenges to the spying program, which is run by the super-secret National Security Agency.

The groups argued that President Bush exceeded his power, violated the rights of American citizens and broke eavesdropping laws when he authorized the program after the Sept. 11, 2001, terrorist attacks to track members and supporters of al-Qaida in the United States.

The program "seriously compromised the free speech and privacy rights of the plaintiffs and others," argued the ACLU lawsuit.

The plaintiffs will have difficulty showing that they have been harmed since we are, after all, talking about a secret program. But then again, maybe not. One of the plaintiffs is Larry Diamond, who was hired by the Bush Administration to help with democracy building in Iraq; in his book, Squandered Victory, he describes his time in Iraq in 2004. In the Knight-Ridder article quoted above, Mr. Diamond explains his involvement in the lawsuit:

Larry Diamond, an ACLU plaintiff, said his ability to investigate human rights abuses and the impact of U.S. foreign policy in the Islamic world has been severely hamstrung because people in countries with repressive regimes are no longer willing to communicate openly for fear they'll be overheard.

"The breadth and illegality and unconstitutionality of this program ... do very great damage to our standing in the world," said Diamond, a fellow at Stanford University's Hoover Institute. "I don't think we can promote freedom abroad if we don't practice it at home."

In an article in the Palo Alto Online (which services the Stanford area), Mr. Diamond elaborates:

“Professionally, my work as a political scientist studying, teaching about, and working to advance democratic development around the world depends on my ability to communicate freely with people throughout the world who are working for democratic change or who have information and analysis that bears on the struggle.

“There is also the problem of being able to communicate with students of mine who are doing their own research, or conducting research for me, in countries that are being monitored through warrantless surveillance, and on subjects that are politically sensitive, such as the prospects for democratic regime change or the opposition movement in a particular country.”

Now the United States has the right to protect itself and that requires gathering intelligence, albeit in a way consistent with our democracy and our constitution. But, besides the likelihood that warrantless spying is illegal, at least within the borders of the United States, the NSA program ultimately brings up another issue that can't be ignored. Trust. There are many questions around the NSA program for the simple reason that the secrecy, stonewalling, arrogance of power, and outright lying demonstrated by the White House increasingly violates the reasonable trust that Americans need to have in their elected officials. More obfuscations from the White House is not going to restore trust in this president.