Monday, January 23, 2006

More is at stake than domestic wire-tapping

Former Vice President Al Gore gave a rip-roaring speech last week attacking the Bush administration for "repeatedly and insistently" breaking federal law and "disrespecting" the U.S. Constitution. One of his major examples was the Bush administration's massive, warrant-less wiretapping of American citizens that has recently come to light. One may agree with his analysis or not, but Gore did not deserve the trashing he got from the White House, which spun a fluffy cloud of half-truths.

In televised remarks, Attorney General Alberto Gonzales said that "during the Clinton administration there was activity regarding the physical searches without warrants" and that Clinton's "deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant." These, Gonzales said, were "inconsistent with what the former vice president was saying today." Presidential spokesman Scott McClellan, speaking to reporters, made the same two points and concluded that Gore's "hypocrisy knows no bounds."

It is true that the Clinton administration made a warrant-less physical search of suspected spy Aldrich Ames' home in 1993. At the time, the Federal Intelligence Surveillance Act did not prohibit warrant-less physical searches. In this case of one man whose espionage did extraordinary damage to U.S. security, Clinton authorized one.

Later, in her congressional testimony in 1994, Deputy Attorney General Jamie Gorelick indeed made the point that FISA did not extend to such searches. But she made the point because the Clinton administration was supporting efforts to amend FISA so it would cover physical searches. Congress passed that amendment in 1995 and Clinton signed it.

So what you have is a legal, warrant-less search of a single identified individual (Ames) who posed a serious threat to the nation, versus illegal, warrant-less wiretaps on thousands of Americans who posed no threat whatsoever. The New York Times reported last week that in this illegal program, the National Security Agency sent the FBI a "flood" of telephone numbers, e-mail addresses and names that "required hundreds of agents to check out thousands of tips a month." Of those, "virtually all led to dead ends or innocent Americans," officials told the Times. This entire operation resulted in hundreds of agents being pulled away from more promising investigations into terrorism.

Gore can't neutralize the untruths spoken by Gonzales and McClellan. But perhaps the American Civil Liberties Union can. Along with another group and several individuals, the ACLU has brought suit against the government challenging the legality of the warrant-less wiretapping. They have a strong case.

But Gore had it right when he implored Congress to also reassert its authority by holding comprehensive hearings into this issue. More is at stake than just illegal domestic wiretapping, as Gore rightly pointed out. According to Bush doctrine, there are no checks and balances in American government anymore. A president can do what he pleases in the name of national security, and neither Congress nor the judiciary can stop him. At the end of the day, that is the real threat to American democracy. Eventually, terrorism will fade as a threat. But if Bush succeeds with his overweening view of presidential authority, the United States may never recover the careful balance designed by the Constitution's framers.

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