Spy Vs. All the Rest of Us: Recap and New Stuff

For anyone who may have spent his or her weekend having a life, thereby missing all the excitement about the Bush administration’s latest meltdown, here’s the short version: The NY Times published a story which revealed the existence of a secret NSA domestic spying program, which acted outwith the bounds of official oversight, as eavesdropping was done without warrants. The president acknowledged the program in his Saturday radio address, and noted it’s an integral tool in the neverending war on terror, and accused the Times of threatening the nation’s security by publishing the story. Interestingly, the Times had sat on the story for over a year.

The big issue here is not the spying, but the evasion of official oversight. It’s not legal to spy without a warrant, and any argument about the necessity to circumvent official channels because of immediacy are pure bunk: the Foreign Intelligence Surveillance Act (FISA) specifically provides for the government to start eavesdropping at any time, as long as they secure a warrant within 72 hours of starting. (Josh Marshall has a good post here on how such warrants are almost never denied.) No one is arguing that the government shouldn’t be allowed to do surveillance; they just shouldn’t be allowed to do it without following the rule of law, which requires a warrant.

The administration is arguing that they were not breaking the law. Essentially, this assertion rests within the definition of the war on terror being an actual war. It’s sort of like if the cops decided they could go around randomly searching homes without cause because the extraordinary circumstance of the war on drugs necessitated it.

Atty. General Alberto Gonzales and Sec. of State Condi Rice are also defending the legality and essentialness of the program today, and VP Dick Cheney will appear on ABC’s “Nightline” tonight, where he will reportedly defend the program and reassert that Congress was made fully aware of its specifics, a claim former Senator and Senate Intelligence Chair Bob Graham disputes.

The most up-to-date defense was provided by Gonzo:

He acknowledged that such eavesdropping would be illegal under the Foreign Intelligence Surveillance Act (FISA). But that act, he said, makes an exception for eavesdropping when "otherwise authorized" by statute. That authorizing statute, he argued, was the 2001 resolution, known as the "Authorization to use Military Force."

That resolution makes no reference to eavesdropping or detention policies. The administration has cited it in justification of both, however.

In a briefing for reporters after his television appearances, Gonzales said his position was bolstered by the Supreme Court's 2004 ruling in Hamdi v. Rumsfeld. In that decision, written by Justice Sandra Day O'Connor, the court said the resolution constituted "explicit congressional authorization for the detention of individuals" in the narrow category of terrorism related to the Sept. 11, 2001, attacks. At the same time, the court said the legality of any individual detention could not be determined by the government alone, but required a judgment by some neutral third party.
If you’re getting the feeling that they’re grasping at straws, you’re not alone. Surveillance is not military force, and it’s not detention. The only way it can remotely be construed as either is by suggesting that any activity related to fighting the war on terror constitutes a use of military force. A scary precedent, if it’s allowed to stand.

Shakesville is run as a safe space. First-time commenters: Please read Shakesville's Commenting Policy and Feminism 101 Section before commenting. We also do lots of in-thread moderation, so we ask that everyone read the entirety of any thread before commenting, to ensure compliance with any in-thread moderation. Thank you.

blog comments powered by Disqus