Bush Explanations of Secret Spying Don't Fly

Monday, December 19, 2005 at 04:57 PM

So the president has come out swinging against critics of his plan that allows phone taps and other spying on people in the US without any oversight by a court.  No Oversight.  Not even by the incredibly accommodating and secretive Foreign Intelligence Surveillance Court, which approved all 1,758 applications for secret surveillance in 2004 according to the Electronic Privacy Information Center (EPIC).  Imagine--not a single applications for secret surveillance was denied in 2004.  Now that's a tough sell for intelligence people trying to get approval.

Doesn't matter.  The prez today was angry, boy, real angry.  Adamant and angry.  As he spoke, you could almost hear the behind the scenes handlers explaining that initial public reaction to the revelations of the secret program were "bad, Mr. President, real bad.  Your best hope is to not only acknowledge it, but come across as indignant that anyone would deny you such authority in a time of war."  And they gave him lots of things to say, too, did a real good job of arming him with defenses, explanations, and justifications. So he proudly declared, with all the conviction he could muster, "I`ve reauthorized this program more than 30 times since September the 11th attacks, and I intend to do so for so long as the nation faces the continuing threat of an enemy that wants to kill our American citizens."  It's almost as in-your-face as the old "Yeah? Well, your mamma."

If only they had a few explanations & justifications that could actually fly.  All the ones the prez dredged up seem to be wingless creatures, and heavy ones at that.  The kind that just might make good anchors as time goes by.  They just don't make a bit of sense.  Not a bit.

The prez offered up the following main claims:

I'm authorized by Article II of the Constitution.

I'm authorized by the joint congressional resolution that authorized me to use military force against Iraq.

We only spy on bad guys we've already come to suspect are connected to terrorists.

Things in the intelligence field move too quickly for us to always be able to go get a court authorization.

So lets take a closer peek at each.

Article II of the Constitution
Well, here's Section 2 of that Article, the only portion which grants him powers, in full:
"Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

See anything there remotely like the authority to allow spying on people in this country without making a case for it before a neutral judicial officer?  See anything suspending the 4th Amendment to the constitution when the president thinks it should be suspended.  Let's face it, if the phrase "The President shall be Commander in Chief of the Army and Navy of the United States" somehow implies the authority to order wiretaps without so much as running the justification for the taps in front of a court, then there is little the president could not presume to do.  Not to mention that making such a broad implication of power sufficient to override the 4th Amendment from language this general would certainly fly in the face of the many Republican claims that the Constitution should be interpreted narrowly and no power to govern assumed unless it is explicitly granted.

The Congressional Resolution Authorizing Use of Military Force Against Iraq
That resolution (called "Authorization for the Use of Military Force Against Iraq") provides presidential authority only in section 3, labeled AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.  
Subsection a is the grant of authority:
" (a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
     (1) defend the national security of the United States against the continuing threat posed by Iraq; and
     (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq."

The entire section, as anyone can plainly see, is directed to "use [of] the Armed Forces of the United States."  Is there anything in this secret spying program that can legitimately be portrayed as using the Armed Forces?  Not to this eye there isn't.  And I can't imagine what eye would see any such connection.

Subsection c indirectly addresses authorization, stating that:
        "(1) SPECIFIC STATUTORY AUTHORIZATION. -- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
        "(2) APPLICABILITY OF OTHER REQUIREMENTS. -- Nothing in this resolution supersedes any requirement of the War Powers Resolution."

Again, is it even close to arguable that this language means the president can authorize secret spying on US citizens without court oversight?  I don't see it.

We Only Spy on Bad Guys Suspected of Being Terrorists
Please.  The 4th Amendment doesn't limit itself to good guys. The Foreign Intelligence Surveillance Act, which requires that the government bring its case before the Foreign Intelligence Surveillance Court, certainly doesn't make application to the court depend on the nasty disposition of the people the government wants to spy on.

Perhaps the best way to look at this silly justification is to remember that the entire reason for requiring a court to approve wiretaps, etc., is precisely because we need some neutral review of the claims of law enforcement and intelligence officers, who as a class almost always feel that surveillance is warranted.  In fact, the Electronic Privacy Information Center (EPIC) says that "In a published opinion (also available in PDF), the secretive Foreign Intelligence Surveillance Act (FISA) Court sharply criticized the DOJ and FBI for providing the tribunal misleading information in 75 cases."  They skew evidence when they do go before the court.  How much "evidence" do you think they require when the court isn't looking over their shoulder?

Things Sometimes Move Too Quickly To Require Court Authorization
On its face, that kind of has some appeal.  After all, you wouldn't want to force the intelligence guys to miss a potentially life-saving bit of info simply because they came across it as the communication was occurring.  If that happened, wouldn't we all want them to listen in and hear the info, rather than missing it as they made a mad dash for the court?

Problem is that the Foreign Intelligence Surveillance Act, as described in a thorough analysis from the Congressional Research Service already has a provision (Title 50 of the United States Code, section 1805(f)) that allows the government to act in emergency situations by doing the surveillance first and get court approval after the fact as long as it acts as soon as possible, and definitely within 72 hours.

That option of after-the-fact approval appears to be so clear that you have to wonder why they allowed the president to raise the whole issue of needing to move faster than would be possible if they had to get court approval beforehand.  Did Gonzales and his staff simply not read the damn law?  Do these guys read anything legal, or do they prefer to create their own law as they go along?  I think it's pretty clear what the answer to that is.

The Conclusion?
We can all reach our own.  Mine is that the real reason is obvious: we have a government that thinks it should be able to do whatever it wants because, by God, it's the government.  Contrary to the prez's protestations that he certainly doesn't want or have dictatorial powers, I think he does want them.  I just think he can't have them.

How many people agree with me will determine whether this is a major political storm or just another another brief interruption of the public's nap.