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Washington's Orwellian Consensus

By Nat Parry
June 2, 2006

Despite new disclosures about government spying on Americans and a flurry of interest in the erosion of U.S. constitutional rights, the near-term outlook appears to be for a consolidation of George W. Bush’s boundless vision of his own authority – at least until the November elections.

None of the promised investigations into Bush’s alleged abuses has made much progress, as the traditional checks and balances of the Republic – the press, Congress and the Judiciary – have either backed away or looked helpless in the face of Bush’s grab for more and more power.

In frustrating a few hesitant challenges to his so-called “plenary” – or unlimited – powers as Commander in Chief, Bush has insisted that only he can decide how to enforce laws, what reality is and when release of information endangers the national security.

Even as his popularity wanes and his poll numbers sink into the low 30s, Bush has continued to wield a powerful trump card: his claim of total control over government secrets. Using that power, Bush has fended off Congress, scared the press and even thwarted investigators in his own administration.

For instance, in early May, the National Security Agency – with Bush’s implied blessing – blocked an internal Justice Department investigation into the role of department lawyers in structuring the NSA’s warrantless wiretapping of American phone calls.

The NSA killed the investigation simply by refusing to grant security clearances to lawyers from the department’s relatively independent Office of Professional Responsibility, which was heading up the internal inquiry.

“We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program,” OPR counsel H. Marshall Jarrett wrote to Congress on May 10.

Bush could have countermanded the NSA’s order, since he asserts ultimate control over all classification matters, but he didn’t – leading to the obvious conclusion that neither he nor Attorney General Alberto Gonzales wanted an independent review of the legal theories behind the NSA’s domestic spying.

The Bush administration cited secrecy again in demanding that federal judges in New York and Michigan throw out lawsuits over the NSA’s domestic spying, because Bush’s lawyers say litigating the suits might reveal state secrets to terrorists.

But Shayana Kadidal, an attorney for the Center for Constitutional Rights, says the case could be conducted with careful safeguards put in place to prevent release of sensitive information.

“The Bush administration is trying to crush a very strong case against domestic spying without any evidence or argument,” Kadidal said. “Can the President tell the courts which cases they can rule on? If so, the courts will never be able to hold the President accountable for breaking the law.” [MSNBC, May 27, 2006]

Buffaloed Congress

By making blanket demands for secrecy, the Bush administration also has buffaloed Congress in its halfhearted efforts to conduct some oversight of the spying operations. The few members of Congress who got limited briefings on the NSA domestic programs were then muzzled so they couldn’t discuss any of their concerns publicly.

Rather than challenge the administration’s domain over all secrets – and its dubious argument that al-Qaeda terrorists otherwise wouldn’t suspect their phones might be tapped – the Congress meekly went along.

When Bush nominated a key architect of the spying program – former NSA director Michael Hayden – to become CIA director, he was waved through after a polite round of hearings and a resounding 78-15 confirmation vote in the U.S. Senate.

The Bush administration also has moved to intimidate and silence the national news media and government whistleblowers. In a TV interview on May 21, Attorney General Gonzales warned that journalists who have written about the NSA spy program might be prosecuted under 1917 Espionage Act.

“There are some statutes on the book which, if you read the language carefully, would seem to indicate that that is a possibility,” Gonzales said in an apparent reference to the Espionage Act. The law makes it a crime for an unauthorized person to receive national defense information and pass it on to others – but has never been applied to journalists.

“It can't be the case that that [First Amendment] right [barring laws restricting press freedom] trumps over the right that Americans would like to see, the ability of the federal government to go after criminal activity,” Gonzales said, apparently referring to demands from Bush’s ardent supporters that reporters be thrown in jail.

“We have an obligation to enforce the law and to prosecute those who engage in criminal activity,” Gonzales said.

What Gonzales’s comment suggests, however, is that the Justice Department is combing through little-used or antiquated laws and developing novel interpretations of the language to let the administration threaten prosecution against people who interfere with Bush’s exercise of his unlimited “war powers.”

Just as Bush has asserted in hundreds of “signing statements” his right to ignore laws that he doesn’t like, he is now creating legal theories to criminalize virtually any action that he considers a threat to his authority under his malleable interpretations of old laws.

When Gonzales refers to “an obligation to enforce the law,” what he really means is the right to take action against critics under “our interpretation of the law.”

Malleable Language

Beyond these novel interpretations of old laws, the Bush administration operates within its own definition of words. They can be made to mean pretty much whatever Bush wants them to mean, with an elasticity that can twist words 180 degrees from the truth.

So, for instance, in 2004, more than two years after approving warrantless wiretaps, Bush assured the American people that all wiretaps still required a warrant.

“By the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” Bush said in a speech in Buffalo, N.Y., on April 20, 2004. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

Bush now offers his promise that the American people have nothing to fear from these NSA warrantless wiretaps – which he had previously claimed didn’t exist – nor from a companion program that’s amassing a database of possibly trillions of phone records from tens of millions of Americans.

“The privacy of ordinary Americans is fiercely protected in all our activities,” Bush said. But he didn’t define what he meant by “ordinary Americans” nor why anyone should believe him after he has lied so often in the past. [For details on Bush’s lies, see Consortiumnews.com’s “George W. Bush IS a Liar.”]

Whatever the sincerity of Bush’s latest guarantees, it soon became clear that his promise didn’t cover journalists, who apparently don’t qualify as “ordinary Americans.”

In mid-May, reporters for ABC News were warned that their phone calls were being tracked to clamp down on government leaks and to inhibit further reporting on secret government activity.

“A senior federal law enforcement official tells us the government is tracking the phone numbers we call in an effort to root out confidential sources,” wrote Brian Ross and Richard Esposito in an ABCNews.com blog post on May 15.

“It’s time for you to get some new cell phones, quick,” the official warned them.

While it’s unclear whether the NSA’s phone call database was being used, the suggestion that the Bush administration is tracking ABC’s phone calls sent a chilling message to both journalists and their sources: their conversations are no longer private and may become grounds for criminal prosecutions.

Data-Mining

Although much about the data-mining program remains unknown to the American people, USA Today reported that the NSA’s goal was to construct the largest database in the world, ultimately storing the records of every phone call made in the United States.

The program apparently intends to apply “social network” models to the calling patterns of Americans supposedly to match them up with patterns of known terrorists.

However, given the fact that trained terrorists, such as the 9/11 hijackers, avoided substantive contacts by phone because they knew their calls could be intercepted, it’s unclear even to experts how applying the patterns of the remaining routine calls – often to a girlfriend or to a realtor – would offer much help in identifying actual terrorists.

More likely, the data-mining program would just overwhelm the FBI with false leads, a process known as “searching for the needle by adding more hay to the haystack.”

While a dubious benefit to real counter-terrorist investigations, the NSA’s data-mining does hold a genuine potential for developing detailed profiles on Americans, especially those who represent threats to Bush’s authority.

That potential would be enhanced, too, if phone-calling habits were cross-referenced to other personal information such as financial transactions and Web-site visits, which was the goal of an earlier Bush administration initiative called Total Information Awareness.

That “counter-terrorism project,” devised by the Pentagon’s Defense Advanced Research Projects Agency, sought to merge vast bodies of electronic data about almost everyone operating within the modern economy.

The plan was to map out “transactional data” collected from every kind of activity – “financial, education, travel, medical, veterinary, country entry, place/event entry, transportation, housing, critical resources, government, communications,” according to the DARPA Web site.

The program would then cross-reference this data with the “biometric signatures of humans,” data collected on individuals’ faces, fingerprints, gaits and irises.

TIA even boasted a logo that looked like some kind of clip art from George Orwell’s 1984. It used a Masonic symbol of an all-seeing eye atop a pyramid peering over the globe, with the slogan, “scientia est potentia,” Latin for “knowledge is power.”

After the TIA program was revealed in 2002, a public outcry across the political spectrum led to congressional action in 2003 to kill the program.

Although the TIA program was believed stopped, the National Journal revealed in February 2006 that the project was ended in name only, kept alive within NSA’s secret budget. The most important components were moved from DARPA to the NSA’s Advanced Research and Development Activity in Fort Meade, Md.

One TIA component, called the Information Awareness Prototype System, was renamed “Basketball” at NSA, but still provided the basic architecture tying together information extraction, analysis and dissemination tools developed under TIA.

Another piece of TIA, called Genoa II, was shifted to NSA and re-titled “Topsail.” It builds information technologies to anticipate and pre-empt terrorist attacks, much like the NSA’s reported data-mining program.

Senate Surrender

In confirming Hayden – the architect of the NSA’s domestic surveillance program – to head the CIA, it looked to many civil libertarians as if the Senate was throwing in the towel on a revamped version of this supposedly defunct Pentagon program, brought back to life as the NSA’s domestic surveillance and data-mining operations.

Some senators who voted for Hayden said they were still not comfortable with what was going on at the NSA.

“My confidence in General Hayden should not be interpreted as confidence in this administration,” said Sen. Barbara A. Mikulski, D-Md. “This administration sometimes pays lip service to the law of the land, as we have seen with recent revelations about the warrantless surveillance program.”

But the confirmation of Hayden follows a long pattern of the Senate confirming Bush nominees to powerful positions regardless of their controversial views on presidential power. Samuel Alito, for example, was confirmed to the U.S. Supreme Court despite his unorthodox views on the “unitary executive.”

At a Federalist Society symposium in 2001, Judge Alito recalled that when he was in the Office of Legal Counsel in Ronald Reagan’s White House, “we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President.”

In 1986, Alito advanced this theory by proposing “interpretive signing statements” from presidents to counter the court’s traditional reliance on congressional intent in assessing the meaning of federal law. Bush has issued more than 750 “signing statements” since 2001, effectively rejecting legal restrictions especially as they bear on presidential powers. [See Consortiumnews.com’s “Alito & the Point of No Return.”]

Another controversial figure confirmed by the Senate despite radical legal views was Attorney General Gonzales. As White House counsel, Gonzales had devised legal arguments justifying torture and even argued that parts of the Geneva Conventions were “quaint” and “obsolete.”

An August 2002 memo approved by Gonzales included the opinion that laws prohibiting torture do “not apply to the President’s detention and interrogation of enemy combatants.” The memo also offered the opinion that the pain endured in an interrogation must include “injury such as death, organ failure, or serious impairment of body functions – in order to constitute torture.”

Even with this so-called “torture memo” public, Gonzales easily won confirmation as the nation’s top law-enforcement official by a Senate vote of 60-36.

World Outrage

Gonzales’s view of torture, however, was rebuked in May 2006 by a United Nations panel that criticized the U.S. detention center at Guantanamo Bay and found that many of the administration’s interrogation policies violated the Convention Against Torture treaty, ratified by the United States in 1994.

The U.N. has now joined various human rights groups in explicitly rejecting the administration’s narrow view of torture and calling into question Bush’s twisting of legal language to justify whatever actions he wants to take.

Now, when it comes to the 1917 Espionage Act and the administration’s interest in prosecuting journalists, Gonzales’s readiness to apply creative interpretations to laws is relevant again.

Professor Geoffrey Stone, who has submitted a memo to the House Intelligence Committee, notes that Congress specifically rejected a version of the World War I-era Espionage Act that would have made it apply to journalists.

When Congress began the debate in 1917, the original bill did include a provision that would bar the press in wartime from publishing information that the President decided was “of such character that it is or might be useful to the enemy,” Stone said.

But after much heated debate and despite a personal appeal from President Woodrow Wilson who favored the press ban, the House of Representatives defeated it by a vote of 184 to 144. This effectively ended the argument over whether the press should be held criminally liable for publishing government secrets in wartime, Stone said.

Stone argues that the resurrected question of whether the United States should criminally punish the press for publishing classified information “poses a prospect unprecedented in American history,” noting that the United States has never had a federal law explicitly prohibiting the press from divulging government secrets.

“The absence of such legislation is no accident,” wrote Stone. “It clearly fulfills the promise of the First Amendment: ‘Congress shall make no law . . . abridging the freedom . . . of the press.’”

But the Gonzales view that prosecuting journalists “is a possibility” fits with the Bush administration’s history of reinterpreting arcane laws to go after critics.

In 2003, Attorney General John Ashcroft’s Justice Department dusted off an 1872 law against “sailor-mongering” to prosecute Greenpeace. The case against the environmental organization followed an attempt by a couple of its members to board a ship transporting illegally harvested Brazilian mahogany. The protesters intended to unfurl a banner that read, “President Bush: Stop Illegal Logging

The law that was used against them however was clearly never intended for environmental activists. Its purpose was described by an Oregon court in 1890: to prevent “the evil” of “sailor-mongers [who] get on board vessels and by the help of intoxicants, and the use of other means, often savoring of violence, get the crews ashore and leave the vessel without help to manage or care for her.”

Although Greenpeace ultimately prevailed in court, many civil libertarians noted the potential chilling effect of using the full weight of the Justice Department to silence a group that opposes Bush administration policies.

The environmental group came under attack again in 2005 when the IRS launched a months-long audit of the organization for alleged money laundering and other crimes. The audit was prompted, according to an IRS auditor, by complaints from a group called Public Interest Watch, which has been funded almost entirely by Exxon-Mobil. [WSJ, March 22, 2006]

Peace Activists

Greenpeace and other administration critics also have been investigated by the FBI’s Joint Terrorism Task Force. “The FBI has in its files 1,173 pages of internal documents on the American Civil Liberties Union, the leading critic of the Bush administration's antiterrorism policies, and 2,383 pages on Greenpeace,” the New York Times reported. [NYT, July 18, 2005]

Another group singled out by the FBI was United for Peace and Justice, which has facilitated many of the mass marches against the war in Iraq, including a demonstration in April that drew 350,000 people in New York. Leslie Cagan, the national coordinator for the coalition, said she was particularly concerned that the FBI’s counterterrorism division was examining the coalition’s operations.

“We always assumed the FBI was monitoring us, but to see the counterterrorism people looking at us like this is pretty jarring,” Cagan said.

Civil libertarians have pointed out that the Joint Terrorism Task Force conducting surveillance of legitimate administration critics has the effect of equating dissent with terrorism, which is especially troublesome with the broad definition of “terrorism” in the USA Patriot Act.

Section 802 of the law defines terrorism as acts that “appear to be intended ... to influence the policy of a government by intimidation or coercion,” which could include confrontational protests and civil disobedience.

In the recent renewal process of the Patriot Act, Congress did attempt to ensure some degree of supervision regarding how the law is being used. The final version included a measure that required the President to inform Congress on how the FBI was using the law’s expanded police powers. But when Bush signed the law in March, he included a signing statement, saying he did not feel obliged to comply with that provision.

This led Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee, to promise hearings on the matter in June. “There is some need for some oversight by Congress to assert its authority here,” Specter said. “What’s the point of having a statute if … the President can cherry-pick what he likes and what he doesn’t like?”

Lax Oversight

Despite a few stabs at oversight of the Patriot Act, however, Congress largely gave the administration whatever it wanted in the reauthorization. Rather than reining in the controversial law, Congress expanded it while making most of its provisions permanent and granting new powers to law enforcement agencies.

The new law increases fines and criminal penalties that the Treasury Department can use to coerce non-profit organizations and other businesses into checking employees against government terrorist watch lists, despite concerns that these lists are overly broad and potentially inaccurate.

The National Counterterrorism Center’s terrorist watch list now includes more than 325,000 names of terrorism suspects or people who allegedly aid them. This number has more than quadrupled since the fall of 2003, and many privacy advocates worry that it includes an unacceptable number of innocent people. [Washington Post, Feb. 15, 2006]

There have been many stories of innocent people finding themselves on the government’s “no-fly” list when they attempt to board an airplane, including an Iraq veteran who was recently held up on his trip home from the war.

In April, Marine Staff Sgt. Daniel Brown was delayed in Los Angeles from boarding a plane home from Iraq because his name was on the no-fly list as a possible terrorist. In uniform and returning from the war with 26 other Marines, he was held up because his name appeared on the list due to a previous incident in which Transportation Security Administration (TSA) screeners found gunpowder residue on his boots – likely left over from a prior two-month tour of duty.

Although the no-fly list remains secret, the TSA concedes that tens of thousands of Americans are on it. The ACLU suggests that the list’s lack of transparency is problematic: “People first learn that they are on the lists – or are mistaken for someone on the lists – when they encounter problems at the airport.”

The ACLU noted that these sorts of provisions are unrelated to fighting Islamist terrorism and needlessly infringe on civil liberties.

Political Opponents

It could also be said that under the broad definition of terrorism and the administration’s track record of going after legitimate political opponents, there is little cause for comfort when George Bush assures the country that the NSA surveillance is only being used against suspected terrorists and their associates.

Indeed, the history of the NSA and government surveillance in general suggests that the temptation to abuse these powerful programs is so strong that politicians at some point will succumb and take a bite from that apple.

After being created by a secret presidential directive in 1952, the NSA rapidly grew into a vast intelligence-gathering apparatus, delving ever-deeper into Americans' private lives and communications.

An NSA program called Operation Shamrock intercepted millions of telegrams to and from the United States. The NSA placed the names of law-abiding American citizens on “watch lists” and then disseminated their private communications to other government agencies such as the FBI and CIA.

Much of the surveillance was conducted on civil rights and antiwar organizations. In the 1950s and 1960s, the NSA and other agencies viewed the movements for peace and racial equality through a Cold War prism, using terms like “subversive activity” to describe civil rights activism.

Dr. Martin Luther King Jr. and other civil rights and antiwar leaders were considered security threats by the government and were subjected to unlawful surveillance, with the information gathered then used to undermine their work.

The Senate’s Church Committee hearings of the 1970s investigated the conduct of intelligence agencies including the NSA and FBI. The findings led to enactment of the 1978 Foreign Intelligence Surveillance Act and other limits on intelligence gathering.

At the end of the investigation, Sen. Frank Church, D-Idaho, specifically cautioned against the vast potential for abuse of the National Security Agency targeted against American citizens.

The NSA’s “capability at any time could be turned around on the American people,” Church warned, “and no American would have any privacy left … There would be no place to hide.” [NYT, Dec. 25, 2005]

Church also warned that if a dictator ever took over the United States, the NSA “could enable [him] to impose total tyranny, and there would be no way to fight back.”

That specter has become all too real with the disclosures of the NSA’s wiretapping program, the collection of phone records and indications that much more is still being hidden from the American people.

George Bush – who once joked that governing America would be easier if it were a dictatorship, “so long as I’m the dictator” – may soon have at his fingertips access to the largest database in the world, which could be used against anyone, including journalists and political opponents.

That now appears certain to remain the case at least until the November elections when the American people will have perhaps one last chance to register their objection to an Orwellian future.



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