NEW YORK--Civil libertarians relaxed when, in September 2003, Republicans bowed to public outcry and cancelled Total Information Awareness. TIA was a covert "data mining" operation run out of the Pentagon by creepy Iran-Contra figure John Poindexter. Bush administration marketing mavens had tried to dress up the sinister "dataveillance" spook squad--first by changing TIA to Terrorism Information Awareness, then to the Information Awareness Office--to no avail. "But," wondered the Electronic Frontier Foundation watchdog group a month after Congress cut its funding, "is TIA truly dead?"
At the time I bet "no." Once a regime has revealed a predilection for spying on its own people, the histories of East Germany and Richard Nixon teach us, they never quit voluntarily. The cyclical clicks that appeared on my phone line after 9/11 corroborated my belief that federal spy agencies were using the War on Terrorism as a pretext for harassing their real enemies: liberals and others who criticized their policies. As did the phony Verizon employee tearing out of my building's basement, leaving the phone switching box open, when I demanded to see his identification. He drove away in an unmarked van.
So I was barely surprised to hear the big news that Bush had ordered the National Security Agency, FBI and CIA to tap the phones and e-mails of such dangerously subversive radical Islamist anti-American terrorist groups as Greenpeace, People for the Ethical Treatment of Animals, the American Indian Movement and the Catholic Workers, without bothering to apply for a warrant. "The Catholic Workers advocated peace with a Christian and semi-communistic ideology," an agent wrote in an FBI dossier, a man sadly unaware of the passings of J. Edgar Hoover and the Soviet Union.
Old joke: A suspect running away from a cop ducks down a long dark alley. When the policeman's partner catches up he finds the first cop walking around in circles under a bright streetlamp. "What are you doing?" the second officer asks. "The guy ran into that alley!" "I know," his colleague replies, "but looking for him out here is a lot easier."
No wonder they haven't found Osama bin Laden. Tapping the ACLU's phones is easier than traipsing through Pakistani Kashmir.
The return of brazen Nixon-style domestic eavesdropping--it undoubtedly occurred under presidents from Ford to Clinton, though on a smaller, more discreet scale--indicates that the White House is flipping ahead to the next page in its Hitler playbook, the part about exploiting a state of perpetual war to stifle internal dissent on a vast scale. "As part of the program approved by President Bush for domestic surveillance without warrants," The New York Times reports, "the NSA has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications." Maybe I should worry about the real Verizon guy, too.
Even more terrifying than the Bush administration's new police state is their willingness to twist American law beyond recognition in order to justify it. First, in 2002, Bush argued that the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance." Although constitutionally tenuous, this reasoning has its origins in case law beginning in 1936, when a compliant Supreme Court ruled that FDR enjoyed "special and pronounced" powers to conduct foreign affairs.
But then, last week, Bush also claimed the right to spy within the United States. Despite Congressional denials Bush said that the resolution that authorized him to use force to go after the perpetrators behind 9/11--which he used to invade Afghanistan--also gave him the right to listen in on Greenpeace and infiltrate a PETA seminar on veganism (yes, really). Attorney General and torture aficionado Alberto R. Gonzales cited the president's "inherent power as commander in chief."
Actually, as Peter Irons documents in his outstanding War Powers: How the Imperial Presidency Hijacked the Constitution, the Founding Fathers never intended for the "commander in chief" to have any powers beyond ordering troops to repel an invasion force. As everyone understood in 1787, the title was strictly ceremonial. A president can't declare war, much less violate our privacy, based on his commander-in-chief "authority."
Officials of a democratic republic derive their power and authority from law. As servants of the people, they can't do anything unless it's specifically authorized by law or judicial interpretations thereof. Only in authoritarian and totalitarian regimes may a legal theory be created that imbues the leader, as the personal embodiment of the state, with "inherent" powers. For example, the Nazi "führer principle," in which the head of state was answerable to no one and the legislative and judicial branches of governments were reduced to rubber stamps, required Hitler to assign himself inherent powers.
Bush and Gonzales' interpretation of their roles is alien, un-American. Do they understand our system of government? Or are they trying to change it to something more "efficient"--something closer to authoritarian state led by a strongman, or even outright fascism?
When I first read about Bush's domestic eavesdropping operation--which he promises to continue--I did what any left-of-center Bush-bashing cartoonist and columnist would do: I filed Freedom of Information Act requests to force the FBI, CIA and NSA to cough up whatever they've got on me. After all, if the feds are going after Ancient Forest Rescue, it isn't a big stretch to surmise that they might be interested in a guy who says that George W. Bush is illegitimate, dumb as a rock and the head of a cabal of sociopathic mass murderers who've done more to destroy the United States than Osama. I'll let you know what, if anything, turns up.
Interesting tidbit: When I visited the NSA's official Web site, my browser warned me that I was "about to enter a site that is not secure." Ain't that the truth.