After last week's hearing of the
House Intelligence Committee on proposed changes to expand the president�s
power to wiretap without a warrant (changes to FISA law), a new recurrence of
the same old question keeps popping into mind: How would it be possible to
insult the Bush-Cheney-Rumsfeld-Rice cabal?
Well, it�s hard, but let�s give it a try. Let�s hypothesize
that, as the day and evening of September 11, 2001, wore on, then-National
Security Advisor (this administration persists in spelling it �adviser�)
Condoleezza Rice spent part of her time doing what she does best at this stage,
selecting clothes and arranging their delivery. Let�s hypothesize, and this is
in no way out of bounds, that she was caught off guard by the magnitude of the
destruction, surmised that she might be expected to go before the cameras, and
requested something particularly somber and dignified to wear. She usually
avoided the Hillary-pantsuit look, but special times call for special measures.
Taking this a bit further and � recalling that Rice is a woman of considerable
wealth by now, having been compensated in multiple ways by Stanford�s Hoover
Institution, the Rand Corporation, ChevronTexaco, and Google�s largest
individual investor among others � let�s hypothesize that she got on the phone
or text-messaged a couple of favorite designers, as well as coordinating with
domestic help and personal shoppers. Let�s further hypothesize that she spent
further time coordinating ancillary domestic matters, especially since she was
spending the night with the president�s family.
Clear so far, right? And given that what we are talking
about is 9/11, let�s hypothesize further � and again, this is in no way a
stretch � that the phone calls of the national security advisor, like many,
many other communications especially on that day, were monitored by the National
Security Agency (NSA). After all, innocent and responsible personnel in the NSA
and the CIA could hardly take for granted the individual safety of any members
of the executive branch; once the hijacks were known, government officials must
be sanely assumed to have been monitored in some way for their own protection.
Let�s further indulge a not particularly novelistic or
far-fetched fantasy for a moment, and hypothesize that NSA personnel listening
in on Rice discussing color, fabric, hemlines, delivery and payment (if any)
were � again, not a stretch � as most human beings would be, enraged. Let�s
further hypothesize that it would be only natural to share information gleaned
by monitoring these discussions with other personnel; that indeed such sharing took
place; and that outrage speeded dissemination of the topic (couture selecting)
around the grapevine, inter- and intra-office. (Again, it would not be the
assumption of a sane person that those offices do not have grapevines. The
first question conservatives should have been asking about the �wall�
purportedly separating employees of different agencies was, �what wall?�)
We could further hypothesize that this colorful info made
its way to the ears of the former NSA chief, now head of the CIA (where normally
one might think that heading up the NSA before and during 9/11 wouldn�t be a
resume-brightener). But we don�t really need to go that far. As generated by
hypothesis, we already have a couple of problems big enough to constitute a
black eye for the administration: 1) some slightly weird though regrettably
in-character behavior by the nominal national security advisor; and 2) some
time-wasting and potentially embarrassing, though humanly understandable,
conduct by personnel in the highly secretive NSA.
Now the crux: what would happen to this information, or to
any investigation of the matter, under new proposals to change FISA law? (Yes,
the answer to this question is obvious, but let�s hypothesize that it isn�t.)
With all their constitutional flaws, one thing the FISA
proposals should accomplish for the public discourse is to clarify a simple
rule of thumb: under our constitutional system of government, any law should be
regarded as dangerous if it gives a president, any president, extra latitude to
monitor or to prevent investigation into his own actions in office and if it
gives a president extra power to punish investigators.
A law that a president can so easily use to prevent
investigation into impeachable offenses is basis for tyranny.
This guideline sorely needs to be applied to the three
programs or proposals currently offered:
president�s program of NSA surveillance, reported by news media rather
than by the president. George
W. Bush and his attorney
general have both stated (scroll down) that the FISA courts need to be
circumvented on occasion, meaning in effect when the president chooses.
Both the president and Gonzales claim that the surveillance takes place
only in cases limited to foreign calls from abroad, etc., but with no
means to check the individual cases, these claims have no validity.
Notwithstanding lip service to the principle of warrants for surveillance,
the communications of American citizens, in the U.S., can still be
monitored electronically by government without a warrant (showing of
probable cause). This is a lot of information-gathering power to count on
any chief executive not to abuse.
Arlen Specter�s proposal. Specter (R-Penn.), up for re-election this fall,
has introduced S.2453,
titled �A bill to establish procedures for the review of electronic
surveillance programs,� that would go even further. Summarized, the bill �Allows the [FISA] Court to issue an order that
authorizes a program for up to 45 days. Requires the Attorney General, at
the end of each 45-day period, to apply for reauthorization of such
order.� Thus you get not just a sidestepping of warrant from the FISA
court for an individual case but a sidestepping of the FISA court
program-wide. Again, a lot to ask of mere human temptation avoidance.
Heather Wilson�s proposal. Wilson (R-NM) has introduced a bill, H.R. 5825, that would
extend presidential power further than ever. In brief, Wilson would
authorize a president to order surveillance without a warrant for up to 45
days after what he designates as a �terrorist attack� on the U.S. or an
�armed attack� on the U.S. Since those terms are not defined, presumably
George Walker Bush could order electronic surveillance, unreviewed for 45
days, after any altercation involving Americans.
To their credit, all the Democratic members of the House
Select Committee on Intelligence in the hearing yesterday opposed the Wilson
bill. As Rep. Jane Harman (D-Calif.) pointed out, warrantless wiretaps under
some provisions of the Wilson bill would be reviewable only by the president,
not by any court. Rep. Silvestre Reyes (D-Texas), dignified and soft-spoken,
called the bill �breathtaking in its scope,� �a wish list for the White House
generated by basically a political machine.� Ms. Wilson employed the
hypothetical example of an al-Qaeda member attacked overseas, with an American
phone number falling out of his pocket, and no time to call home for the
warrant; Rep. John Conyers (D-Michigan), testifying in opposition, reminded
gently that current FISA law already contains a 72-hour emergency exception.
Responding to criticisms, Ms. Wilson said, �As long as
you�re not calling al-Qaeda, you�re okay.� Aside from the problem of lack of
verification and review, this rubric seems to give a president blanket
authority to monitor communications with informants, double agents,
infiltrators or undercover operatives.
In short, all these proposals threaten to give a president
blanket authority to monitor, among others, anybody doing good law enforcement
or good investigating.
Nobody mentions that one potential abuse of the legislation
by the executive would be to ensure personal immunity from accountability.
Maybe nobody needs to mention it, given that cover-up and collusion have been
key factors in every major case of police excess, law enforcement failure,
prison abuse, or war crime ever uncovered.
If a president or his henchmen can monitor domestic
communications on say-so alone, is there any guarantee he would refrain from
monitoring individuals in the administration? And given unconstrained power to
monitor communications within the administration, something we can be very sure
is happening already, is there any realistic possibility that the best
individuals, effective IG professionals and auditors for example, would be
somehow protected? And is there any guarantee that the content monitored would
be preserved only for appropriate use? The late J. Edgar Hoover is posthumously
famous not only for domestic surveillance and cross-dressing, but for having
kept dossiers on members of government, for blackmail.
Back to the top: setting aside hypothetical couture, there
were indeed embarrassments and lapses of judgment on 9/11 about which the White
House has been less than forthcoming. Not scrambling fighters from Andrews AFB
is one flagrant example. The public has been kept in the dark about the
financing, training and travel of the 9/11 terrorists; about the collusion of
Pakistan�s ISI and the Saudi ruling family; and about Bush-Cheney links with
both. And far too little has been accomplished to correct systemically even the
known lapses. Why would we want further enhancement of the undoubted capability
of the White House � any White House -- to cover up mistakes, excesses and
Margie Burns, a freelance writer in the Washington, DC, area, can be
reached at firstname.lastname@example.org.