Sunday, May 21, 2006

Rage Against the Machine

For the past week I have tried to provide you with examples of governmental abuse of power. Mostly, I have criticized the President because these abuses are happening on his watch. However, I must reiterate that efforts to remake the government go well beyond the executive branch, as it is clear that Congress is complicit as well. Here is a small example of how it all works; of how our government keeps all of us fat, dumb and happy.

We all know about the NSA wiretapping scandal and about the Bush administration’s not so secret war against the Constitution. We know about the Patriot Act and how it is keeping us safe from terrorist…how it is protecting our national security. Oh how ignorance is bliss. In March of this year, President Bush signed legislation, reauthorizing the Patriot Act. However, did you know that the document Bush signed included an addendum stating that the President did not feel obliged to obey certain requirements of the Act? Specifically, the President stated that he did not feel compelled to notify Congress as to how the FBI was using the Patriot Act’s expanded police powers. So here we have the President of the United States, reauthorizing the Patriot Act and calling it “a piece of legislation that’s vital to win the war on terror and to protect the American people”, simultaneously stating that he was not obliged to follow its requirements. Wow! I bet you didn’t even know that one did you? The President was not happy with some of the new provisions intended to make sure that the FBI did not abuse their special terrorism-related powers to search homes and secretly seize documents. You see, shortly after the conclusion of the official signing ceremony, the White House quietly released a “signing statement” outlining the Presidents interpretation of the new law. In the statement, Mr. Bush said that he did not consider himself to be bound by the new law requiring he tell Congress how the Patriot Act powers were being used. It continued by stating that the President felt he could withhold any information that he deemed dangerous to national security, the deliberative process of the executive, to ongoing foreign relations or the performance of the executive’s constitutional duties. This is a perfect example of President Bush erroneously claiming his constitutional authority to bypass the law! When President Bush authorized the military to conduct electronic surveillance of Americans’ international phone calls and emails without obtaining warrants, Bush claimed that his wartime powers gave him the right to ignore the law. According to the Constitution only Congress has the power to declare war, which by the way it has yet to do, so where did the President get these wartime powers? The same can be said for the illegal actions of the NSA, CIA and the FBI. When Congress passed a law forbidding the torture of any detainee in U.S. custody, the President signed the bill with great public fanfare, only to quietly release another “signing statement” claiming executive authority to bypass the law if he believed using harsh interrogation techniques was necessary to protect national security. The President’s outrageous claims of power, specifically the power to ignore federal law, is in direct violation of the Constitution which clearly charges Congress with the power to write laws and the President the duty to “faithfully execute” the laws passed by Congress.

The scary part is that Congress is not willing to do anything to curb these abuses. In fact, Congress is currently attempting to pass a new law called the “Terrorist Surveillance Act of 2006,” which would authorize the warrantless wiretapping of American residents. The bill allows for the NSA to monitor telephone and email communications without requiring judicial review or court approval. In other words, it would roll back the protections granted all Americans under the FISA. The Foreign Intelligence Surveillance Act of 1978 (FISA) is a post-Watergate law, which was specifically enacted to restrict the President’s ability to spy on Americans under the guise of national security! Prior to the Watergate scandal and before the passage of FISA, a Congressional committee called the Church Committee was convened to investigate the NSA and allegations of its illegal domestic surveillance program. The Church Committee discovered that the NSA was in fact monitoring millions of international telegrams and that the agency maintained files on approximately 75,000 U.S. citizens! The findings of the Church Committee led to the establishment FISA, requiring the government to establish probable cause, receive judicial review and obtain a specific warrant before any American could be wiretapped. The Terrorist Act of 2006 would potentially authorize indefinite wiretaps and the electronic communications monitoring of Americans in this country. It would do so without the need for an independent court to determine if the American in question has actually done anything wrong. Under the proposed Act, communications could be monitored for 45 days, giving the administration the option of seeking a court order or notifying a Congressional subcommittee. The subcommittee is not a court and would not have the power to grant or deny approval…how convenient. Under the proposed legislation, court approval for wiretapping would no longer be mandatory as a matter of law and the Fourth Amendment be dammed. Gone is the need for probable cause, as government agents will be allowed to initiate surveillance based on mere suspicion, unencumbered by the need for judicial review or approval. What I find most disturbing is that Congress is willing to pass this legislation without first receiving the basic information it is entitled to regarding the current NSA scandal. I guess that’s good given how the Terrorist Act of 2006 greatly diminishes the need for Congressional oversight. Rather that get to the heart of the issue, as was the case with the Church Committee, Congress would rather move forward with flawed legislation designed to provide political cover for lawmakers through plausible deniability. How can Congress pass legislation such as this, if it does not have a clear understanding of what the administration is doing and why the current law is inadequate? A strong Congress should not legislate anything before it gets the information it needs and it should force the President to explain why he feels that it is necessary to change the current law. This legislation will not only erode the civil liberties of U.S. citizens by eliminating the checks and balances on domestic surveillance. It will also eliminate the protections granted under FISA, making judicial review optional; it will significantly increase the power of the President over Congress and the Supreme Court and it clearly violates the Fourth Amendment’s requirement for probable cause and its protection against the issuance of general warrants. If that isn’t enough, the bill would impose harsh penalties on “whistleblowers”. Anyone making “unauthorized disclosures” about the “terrorist surveillance program” will be fined up to $1,000,000 and imprisoned for up to 15 years. You know if it were not for whistleblowers, neither Congress nor the American people would be aware of the NSA’s illegal surveillance programs now “under investigation”.

The proposed legislation eliminates the need for judicial review and the issuance of specific warrants, waters down the definition of probable cause and allows for the electronic surveillance of American citizens. It imposes strict penalties for “whistleblowers” while offering retroactive protection for lawmakers who prefer to remain ignorant as to specifics of this administrations illegal actions based on the notion of plausible deniability. The proposed law would allow for all of this even though the Constitution clearly does not. I can’t help but to recall the Presidents words as he signed the reauthorization of the Patriot Act? That line about how it is vital to win the war on terror and to protect the American people. The President may feel that he is protecting us from al Qaeda but I wonder who is protecting the rest of us from him?
Think about it.

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