Wednesday, December 21, 2005

An Unnecessary Breach of Law

Published on Wednesday, December 21, 2005
 
by Susan Goering
 

If President Bush thought his responses to charges of illegal domestic spying - a studied lack of contrition, frontal attacks on the press and Congress and reliance on preposterous legal arguments - would quell criticism from across the political spectrum, he was mistaken.

Even self-identified conservatives failed to buy his argument that his status as commander-in-chief and the post-9/11 congressional resolution authorizing him to invade Afghanistan conveyed authority to break our domestic laws.

The law that forbids ordering the National Security Agency to eavesdrop on hundreds, perhaps thousands, of Americans without any court order is the Federal Intelligence Surveillance Act. FISA was passed in 1978 to strike a balance between national security and civil liberties.

But significantly, the FISA law tilts steeply in favor of national security interests. Rather than having to go to a federal court to get a warrant, intelligence officials can get a warrant to spy from a FISA court judge in a totally secret proceeding. And they need not show "probable cause" to believe a crime is being committed but only a "reason to believe" that there is a threat to national security.

Moreover, the FISA law already provides for Mr. Bush's "enemy who is quick, clever and lethal," because officials may spy first and get a FISA order three days later. And, finally, the FISA court is notoriously compliant. Since 1979, it has declined to issue warrants only four times out of the18,747 times the government has sought one.

In short, breaking the law was hardly necessary to achieve the national security interests the president touted. That kind of arrogance of power compounds public and congressional expressions of alarm at the most far-reaching assertion of government power any president has had the audacity to make in recent decades.

Indeed, long-time NSA officials - none of them averse to intelligence gathering - reportedly were so appalled at administration overreaching that they helped blow the whistle.

Our sudden collective outrage may also stem from recognition of a longer standing pattern of a president who cheats on the rule of law. This week, the FBI's own documents confirmed fears that, since 9/11, the FBI has been using its counterterrorism resources to monitor and infiltrate peaceful activist groups such as People for the Ethical Treatment of Animals, Greenpeace and United for Peace and Justice.

In Colorado, one FBI memo revealed an federal interest in Food Not Bombs, a group that provides free vegetarian food to hungry people and protests war and poverty. Canadian border officials interrogated a vacationing Methodist minister from Kentucky for over an hour because he was the subject of an FBI file. In Michigan, an FBI document characterized a local peace group and an affirmative action advocacy group as potentially "involved in terrorist activities."

But these are the tip of an iceberg. Our ACLU Freedom of Information Act project seeks to break open government secrecy for over 150 advocacy groups and individuals in 20 states and includes the who's who of causes for the environment, animal rights, labor, religion, Native American rights, fair trade, grassroots politics, peace, social justice, nuclear disarmament, human rights and civil liberties.

Perhaps most chilling is the FBI's penchant for labeling these groups as possible "terrorists." Because of a unilateral Bush administration executive order, the T-word opens the door to secret investigations of people in this country by a variety of secretive government agencies, inclusing the NSA. Before 9/11, domestic spying was off limits to the NSA. Over the past several days, the public has learned of more and more spying on these shores in violation of long-standing federal laws and policies.

Domestic spying abuses our trust and freedom, using limited tax dollars appropriated to fight terrorism in the process. Sen. Arlen Specter, a Republican from Pennsylvania, says he plans for his Judiciary Committee to conduct investigations. But that's not enough.

An independent special prosecutor is also necessary to determine whether our federal criminal laws have been violated by this intentional surveillance of electronic communications of people in the United States without a court order. And Congress needs to build more safeguards into the Patriot Act to curb administration conduct that is utterly antithetical to any notion of a government of laws and a profound threat to our democracy.

Susan Goering is the executive director of the ACLU of Maryland. Her e-mail is goering@aclu-md.org.

2005 Baltimore Sun

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