I have written before about the creeping fascism that the Bush Administration’s manipulation of voting in both the 2000 and 2004 elections represents. The point there was that if we can’t throw the bums out via the ballot box, there is no recourse to citizens of a democracy, ergo, no democracy.
The Frontline documentary, Spying on the Homefront, that aired last night (May 15) on Public Broadcasting added another dimension to this notion of creeping fascism. The documentary, written by one of the great reporters of our time, Hedrick Smith, detailed how the Patriot Act made it possible for this administration, especially the FBI and the NSA, to spy on Americans in contravention of the Constitution. The Fourth Amendment, that is, guarantees to every American the right to be safe from government searches and seizures in his/her home and person. In order to breach that privacy, the government must get a search warrant, granted by a judge, which requires a specific cause to justify the search—i.e. that a crime has been or is about to be committed. Absent that probable cause, the government cannot make the search.
In 1978, Congress added a loophole for enforcement agencies seeking to spy on foreign powers or agents. It set up a FISA court to which government agencies could appeal when they felt the need to spy on such foreign operations. The FISA law allows government agencies to conduct electronic searches both with and without warrants. To surveill with a warrant the FISA court must find probable cause that the target is a "foreign power" or an "agent of a foreign power." Most notably, if the surveillance pertains to US persons, the surveillance must meet certain "minimization requirements," i.e. the government must justify itself. To surveill without a warrant, the President can authorize spying for a year, provided it is only "for foreign intelligence information…and there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." In short, the safeguards against spying on all persons living in the United States (not only citizens, note) stands. To do otherwise, the government must justify its case to a judge.
The problem for the Bush Administration is that it does not ever want to go to court to justify its spying. It simply insists on arrogating to itself the power, in the person of the President as putative Commander in Chief (the President is not Commander in Chief of the nation, by the way; he is Commander in Chief of the Armed Forces only during a declared war), to spy on anyone, foreigner or citizen, anywhere, in the US or outside it, at any time, no matter what. It knows that if it has to get a judge’s permission to do such spying, it will have to show probable cause. It does not want to do that—presumably because much of the time it cannot. What it insists on—and has practiced since 2002 as revealed in December of 2005—is the ability to record all communications, which it can then troll through to find out if anyone is doing or saying anything it considers suspect or dangerous to national security, or itself. The exponential growth of electronic communications, and the corresponding growth of computer programs to monitor and inspect those communications, has given it the ability to do such mass data mining, all without the knowledge of those involved.
That’s what Spying on the Homefront portrayed. Focusing on the alleged threat to major cities like Las Vegas in 2004, the documentary showed how the FBI sought and received the records of everyone, mostly U.S. citizens, staying in Las Vegas for the New Year holiday. It then scanned those records via computer programs to determine if anyone in that blanket search matched its database of suspected terrorists, or those in any way connected to terrorists. Hedrick Smith interviewed one couple, in Las Vegas to be married, regarding those searches. They were outraged, not only because they had been watched during their marriage, but also because the husband—a computer expert—knew that the FBI’s claim to have destroyed all the records obtained in Las Vegas was a lie: they would in fact persist in some database indefinitely. Worse, the government announced after the fact that the alleged security threat to Las Vegas had been a mistake: someone misinterpreted their data, itself no doubt derived from previous spying.
Spying on the Homefront also interviewed the ATT worker who discovered the secret office set up in ATT headquarters in San Francisco, apparently to record all records that come through ATT—phone calls, emails, and every other form of communication facilitated by the communications giant. Reports indicate that Verizon and Bell South, among others, have also handed over their records.
The coda to this story is the testimony before the Senate Judiciary Committee today, by assistant Attorney General James Comey. It concerned an episode in 2003 at a hospital where then-Attorney General John Ashcroft was recovering from gall bladder surgery and Comey was acting AG. At that time, the Bush Administration was expanding its NSA search procedures to include spying on Americans. Comey had been instructed by AG Ashcroft—no civil libertarian by the way—to refuse to give Justice Department approval to the Administration’s plans. Comey then found out about a cynical end run being attempted by the White House: the President sent Chief of Staff Andrew Card and then-counsel Alberto Gonzalez to Ashcroft’s hospital room, in an attempt to browbeat the ailing Attorney General into giving his approval for their secret wiretapping program. Comey arrived in time to brief Ashcroft, who then, even in his weakened state, bellowed his disapproval and refusal to the White House team. Still the White House persisted, and only after Comey threatened to resign rather than sign off on the program did the White House agree to a compromise proposal--though even this did not stop their later-to-be-revealed secret surveillance of American citizens in clear violation of FISA.
One other interview in the documentary is worth mention. The notorious John Yoo served as White House counsel during Bush’s first term. When asked if the NSA spying didn’t violate the law, Yoo stated matter of factly that "there is a higher law" than FISA and the 4th Amerndment. No, he did not mean God’s Law. Yoo meant the President’s authority as Commander in Chief. According to this now-professor of jurisprudence, the President’s authority, detailed in the Constitution, cannot be abridged by any law. When Hedrick Smith asked if he really meant that the 4th Amendment—the core of English law for a thousand years, i.e. the right of citizens to be safe in their homes from illegal searches and seizures, the violations of which led the American colonists to revolt against the King of England and declare American independence—could be violated by the President, Yoo maintained that indeed it could. In other words, according to this criminal enabler, the President is above the law, possessed of dictatorial powers over his subjects. He can and has ordered surveillance of anyone, of everyone, under the justification of what he has decreed to be a virtually endless war on terror.
What this means is that every American, no matter who or where or why, has now, and for the foreseeable future, effectively become suspect. His every communication is open to the Federal government to spy on, record, examine, and use however it wishes in its alleged attempts to find terrorists.
A government that can search its citizens regardless of what they do; a government that secretly authorizes such searches in clear violation of the laws designed specifically to prevent them; a government that raises itself to the level of a monarch or a dictator—that government has become a tyranny. Any distinction between it and other governments it condemns and targets as anti-democratic dictatorships is a distinction in name only. For a democracy means the people have the ultimate power. A democracy means the people have the right to be safe in their homes and possessions from unwarranted government intrusion. When that safety and privacy have been rendered moot, democracy has been rendered moot as well.