The NSA Challenge to Our Constitution

As I recall, the FISA system was put in place not just as a response to Richard Nixon and the crimes surrounding Watergate. It was noted at the time that other administrations had stretched the law when it came to spying on American citizens. And the worst abuser may have been J. Edgar Hoover who was way out of line on a number of occassions where the purpose of the spying clearly involved a political agenda. Yesterday, with the funeral of Coretta King, we were touched again by the long memories of abuses of power when J. Edgar Hoover saw fit to spy on Martin Luther King for reasons that had nothing to do with the security of our nation or law enforcement.

People who have acquired power and enjoy power and are in a position of power for long periods often have a tendency to abuse their powers. That is one reason why we as a nation decided to limit presidents to two terms and it may be a reason to consider limits on how much time people like Dick Cheney and Donald Rumsfeld can occupy powerful positions in government. Preventing abuses of power is why we have a long history of checks and balances that liberals, moderates and conservatives have often agreed on; as a nation, we have often worked together to ensure that no one is above the law and that when unusual situations arise, there will always be measures to provide for some form of accountability.

Glenn Greenwald of Unclaimed Territory says the NSA fight is just beginning and that the opponents of Bush's growing abuse of power are going to have to be focused if accountability is take place. Greenwald is becoming an essential critic of Bush Administration arguments defending NSA spying; he is worth checking on the latest developments and legal arguments. His post is highly readable but it is a long one. I'm going to quote extensively the three main suggestions that Greenwald has concerning how some accountabillity can be brought to bear:

The case that ought to be made need not and should not depend upon the types of overly calculating and manipulative message manufacturing in which our political consulting class so relentlessly (and unsuccessfully) traffics. This scandal resonates so passionately with so many people because it implicates our most basic political principles. For that reason, any campaign to persuade Americans of the seriousness of this scandal must, in my view, be rooted in that passion and adhere unapologetically to those principles. Following are a few of the types of arguments and approaches which I believe could be powerful and effective:

(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him.

It is true, as many have been pointing out, that this scandal, at its core, is about the rule of law -- about whether the President has the right to break the law. But it will not suffice to rely upon that slogan because Gonzales has now articulated a clear response to it: namely, he has claimed that they did not break the law because there are legal authorities and legal theories that allowed them to do what they did.

They then parade around lawyers such as Gonzales and others to spout esoteric legalisms and, as intended, the impression is created that this is nothing more than a mind-numbingly complex lawyer dispute to be resolved with legal briefs in court. If all we say is "the President broke the law" and they say "no, we adhered to the law," nobody will be persuaded either way.

It is undeniably true that Gonzales, in his testimony, articulated a clear and coherent legal theory to defend Bush’s violations of the law. But that legal defense is so radical, so dangerous, and so contrary to our most basic political values, that the first priority, in my view, is to make Americans aware of exactly what powers the Administration claims it has the right to use -- not just against Al Qaeda, but against American citizens, within the United States.

The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.

(snip)

(2) This scandal is not about liberalism or conservatism, but is about core American political values.

There are scores of prominent conservatives and conservative organizations vigorously opposed to the Administration’s actions, and every public event and campaign should include them in order to prevent this scandal from being (falsely) depicted as the by-product of liberal softness on terrorism or personal hostility towards the President. There are multiple ways to achieve this and several reasons why doing so is vitally important.

(snip)

(3) Do we want to radically change the way our Government works for the next several decades all because of Al Qaeda?

America is a country that has faced numerous, grave external threats in its history – including several which threatened the very existence of our nation. The strength and genius of our country is that we defeated each of those threats without ever needing to abandon our founding principles by vesting the type of unchecked and overriding authority in a President which George Bush has now seized. Indeed, FISA itself, which Bush claims he has the right to violate on account of Al Qaeda, was enacted by Congress and signed into law by the President in 1978 -- at the height of the Cold War, when we faced a threatening and powerful Soviet Union.

One of the dangers of Bush's presidency that can't be over-emphasized is the tendency of administration officials to take shortcuts that essentially paper over serious incompetence. In a climate of secrecy and 24/7 spin, the blunders that result from incompetence, a lack of accountability and the lack of real debate can only increase with greater consequences.