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opinion
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Bush's warrantless wiretaps What we're dealing with is the legality, and also the propriety, of the Bush administration's domestic wiretapping and spying policies. I make the distinction between legality and propriety because we all ought to understand that everything that's legal to do is not necessarily the right thing to do. I will concentrate on the legal issues, but in order to fully understand those, let's consider several of the contexts in which the current controversy is set. Rules are different outside the United States The first context is that we're talking about this is Panama, where the US Constitution pretty much does not apply. Even when the United States ran the Canal Zone, people's constitutional rights were limited by what's called the Insular Cases doctrine. After the Spanish-American War the United States became a colonial power in places like Puerto Rico, the Philippines, Guam and so on, and in a case where a Puerto Rican tax law was challenged as being against the US Constitution, the Supreme Court held that in US possessions that are neither states nor incorporated territories, constitutional protections do not apply. That's one reason why there were hardly any democratic institutions in the Canal Zone. That's one reason why it wasn't until after World War II that women were allowed to serve on Canal Zone juries. That's why if you held any sort of dissident views, or if you were thought to be a homosexual, the US Army Corps of Engineers major general whom the president of the United States appointed as Canal Zone governor could send you a letter giving you 30 days to leave the isthmus and that order could not be appealed. Moreover, the main piece of legislation about which we talk today is the 1978 Foreign Intelligence Surveillance Act. That law, called FISA in Washington jargon, allows spying abroad, but restricts the activities of the intelligence services within the United States. If the Bush administration wants to use the Echelon system or some similar electronic eavesdropping apparatus to read your email, or listen to your phone calls, because you are in Panama they can do this. This is not so much a good reason for paranoia as it is to pity the poor soldier, sailor or spy who has to read or listen to all this stuff. The basic rule of thumb for Americans living abroad is that the constitution does not follow the American flag overseas. What the founders thought Looking back through history, we have to say that Americans were very lucky to have had not one but two two Renaissance men, among the leaders of the independence movement. You don't find many leaders like that in history. In our times I'd say that Nelson Mandela is one of those, but such people are rare. Yet it was America's great luck to have both Benjamin Franklin and the founder of what became our party, Thomas Jefferson, towering above the impressive pool of talent that founded the American republic. Benjamin Franklin was noted for his experiments with electricity. But electronics weren't invented in those times and they had no telephones. The constitution and the Bill of Rights don't mention wiretapping. The Bill of Rights came primarily from the emerging Jeffersonian faction, as the price of passing the constitution that was drafted by a convention chaired by George Washington. The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. In a case called United States vs Katz, the Supreme Court held that electronic communications, just like those written on paper, are protected by this provision in the Bill of Rights. Let me digress about the Katz case. This was a 1967 decision about a mafia dude. The FBI, without a warrant, put a suction cup microphone on the outside of a telephone booth in Los Angeles, from which Mr. Katz called gambling information to people in Miami and Boston, and for that he was convicted on eight counts of violating federal gambling laws. The case is important not only because it applied the Fourth Amendment to electronic communications, but also because it announced a standard in search and seizure cases based on whether a person has "a reasonable expectation of privacy." Let us note that one of the things that has been happening in recent years is that Republican-appointed judges have been whittling away at people's right to privacy by finding that their expectations aren't reasonable. And really, what IS reasonable to expect when right-wing fanatics run the government? But even more to today's point, in this 7-1 decision --- Thurgood Marshall had just been appointed to the court and hadn't heard the arguments so didn't participate in the decision, and the dissent was by Hugo Black --- there was this obiter dictum argument in concurring opinions written by Justices White and Douglas that has everything to do with today's controversy. Whizzer White (that's what they called him as a football star --- he was surely the most talented athlete we ever had on the high court) would have created a national security exception to the warrant requirement. He wrote: We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable. But Douglas would not let this pass uncontested. He wrote, in a concurring opinion that was also supported by Justice Brennan, that: ...I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters. Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate. Because this argument had nothing to do with the case at hand, it's what lawyers call dictum --- a learned opinion that has some authority but is not considered binding authority for future decisions or for the lower courts. Back to the main thread. Let's understand that the privacy of a person's communications was not that controversial an idea at the time of the Constitutional Convention. Benjamin Franklin, after all, had organized the colonial era mail service --- until King George fired him for not being sufficiently subservient --- and then founded what became the US Post Office. One of its principles from the very beginning, something that was inherited from colonial times, was the privacy of people's mail. At the convention itself, there was a secrecy rule. One of the delegates was writing a letter to his wife, describing the proceedings, and left it on his desk. Other delegates found it and took it to George Washington, demanding action against the writer for violating the secrecy rule. Washington rebuked the delegates who brought him the letter, telling them that "gentlemen don't read other gentlemen's mail." He handed the letter back to its author and reminded the convention of the importance of maintaining secrecy. Washington became the first president of the United States by consensus, but the party that formed around him, the Federalists, became bitter adversaries of the Jeffersonian Democrats. Jefferson ran the Federalists out of power, and ultimately out of existence as a party, starting with the election of 1800. It was a ferocious campaign fought over the right to dissent, which had been abridged in the Federalists' Sedition Act and to a lesser extent in their Alien Acts. Despite all of that, the Federalists and the Democrats never disagreed about the proposition that the privacy of a person's mail ought to be inviolable. COINTELPRO, Watergate and FISA Now we come to more recent times, to another era of deep divisions among the American people. It really is to the point that any person who has been active in public affairs for the past several decades will have done things or said things or taken stands that a person with an opposing point of view would be able to point to in order to vilify the former in the eyes of many other Americans. The divisions over civil rights, over America's proper role in the world, over the proper relationship between church and state, were and still are that stark. Perhaps the greatest symbol of these divisions was the Watergate scandal. In its minor detail, it was about Richard Nixon sending a gang of hoodlums on a series of illegal missions. One of these, to be carried out by a group of Cuban-Americans under the supervision of a race-baiting unsuccessful Republican candidate for prosecutor in a suburban county, a Mr. Liddy, was to break into the offices of the Democratic National Committee at the Watergate Hotel in order to plant a series of electronic listening devices. (By the way, if you like this genre of thugs, I can refer you to a real estate development over in Arraijan whose founding principals include the guy who delivered Richard Nixon's hush money to the Watergate burglars, a man named Gilbert Straub.) Watergate came to symbolize a lot more than a petty burglary. The break-in itself was merely the extension of tactics that had been used against leftists during the Red Scare of the 40s and 50s, then against the civil rights movement of the 50s and 60s, and then against the antiwar and feminist movements that arose in the 60s and 70s. It was, if you will, the inclusion of the Democratic Party among the targets of J. Edgar Hoover's COINTELPRO program and activities patterned upon it. COINTELPRO is an acronym for "counter-intelligence program." It was a misnomer coined by a master of deceptive public relations, one J. Edgar Hoover. Who was J. Edgar Hoover? He was a closet queen who made a career out of blackmailing other homosexuals, and straight people as well, for their sexual indiscretions. He kept files on the private affairs of a lot of people. The most powerful politicians in Washington were afraid of him. Hoover was also a southern white racist, who adopted as one of the key goals of his misnamed COINTELPRO an effort to "prevent the rise of a black messiah." So when Malcolm X was shot down, two of his three bodyguards were undercover agents, one from the FBI and the other from the New York City red squad. So when civil rights activist Viola Liuzzo was killed in a drive-by shooting, the FBI was present in the car from which the shots were fired. So when the Black Panther Party had a bloody split, it turned out that undercover FBI agents played a central role in inciting it. Part of COINTELPRO was following Martin Luther King around, bugging the places where he slept, trying to torment him into suicide, trying to disrupt his marriage and his friendships. After King was murdered his assassin was allowed to flee abroad, and there never was a serious investigation to determine who provided the funds for this flight. How do we know about COINTELPRO? We know because a women's collective of the Weather Underground Organization teamed up with some radical nuns who ran with the Berrigan brothers, broke into an FBI office in the town of Media, Pennsylvania, stole their files on COINTELPRO and published them. Those files then became the central exhibit in a series of committee hearings led by Senator Frank Church. The main piece of legislation to come out of that committee was the Foreign Intelligence Surveillance Act, or FISA. FISA may have been a reaction to the abuses of COINTELPRO, and of the NSA and Defense Department spying on the antiwar movement. but it was really about finding a workable compromise solution to the legal problem of chasing Soviet spies in the climate of suspicion that followed Watergate. Understand that Title 50, Section 1809 of the US Code makes it a crime to "engage in electronic surveillance under color of law, except as authorized by statute." After Watergate the courts were inclined to take that law seriously, but the enemies of the United States did not feel honor bound to restrict their activities in light of that. FISA created a secret court to authorize surveillance against suspected foreign agents operating in the United States. It defined "foreign agent" broadly, so as to embrace guerrilla armies in other countries, international terrorist networks and Americans doing the bidding of overseas powers. In an emergency, FISA lets the government indulge in otherwise illegal warrantless surveillance for 72 hours before going to court. For the first 15 days after the outset of a war, the restrictions imposed by FISA do not apply. The FISA court, which is staffed by federal judges and meets in a windowless room at the Pentagon, has over the years almost never denied an application for a surveillance warrant. Despite all of that, George W. Bush has decided to authorize wiretaps purportedly against Al-Qaeda suspects without going to the FISA court. In addition to that, he has subverted the FISA court itself. Turned down for a secret warrant to be used for law enforcement rather than foreign intelligence purposes, Bush convened a FISA court of appeals that overturned this ruling, and now that windowless room in the Pentagon has issued warrants for such matters as bribery to obtain a license to open a strip joint in Las Vegas. Feingold and the rest of the Senate Democrats On the face of it, George W. Bush's authorization of warrantless electronic surveillance is a criminal act. Although it may be a politically futile thing to do, Senator Russ Feingold attempt to hold Bush accountable is supported by the black letters of US law. The argument that the senator is making is righteous, especially when one believes, like I do, that the wiretapping is the least of Bush's crimes when you compare it to things like torture. However, most of his colleagues on the Democratic side of the aisle have hesitated to join Feingold on this matter, for a variety of reasons. And let me explain the legal rationale --- which is really a political judgment --- that legitimately causes other Democrats to fear what Feingold is doing. George W. Bush may have been getting blasted out of his gourd and running a businesses into the ground back at the time of the Church Commission, but Donald Rumsfeld and Dick Cheney were veteran Republican apparatchiki by then. Cheney was on the record as holding the opinion that the post-Watergate reforms were improper restrictions on the president's powers. By his actions, it appears that Rumsfeld believes that, too. In the 1970s the Supreme Court repeatedly slapped down Nixon's assertions of executive privilege. They wouldn't let him defy a subpoena. They wouldn't let him exercise a de facto line item veto by an embargo on funding approved by Congress. They weren't about to approve any argument about some inherent presidential right to order electronic surveillance without a warrant. So at that time people like Cheney and Rumsfeld may have believed in executive privilege and the president's power to order domestic wiretaps without a warrant by evoking the claim of national security, but they couldn't count on the Supreme Court buying it. So although they may have thought FISA was unconstitutional, they chose not to test that opinion in court. But what about now? Would today's Supreme Court reject George W. Bush's power grabs as readily as the high court of the 1970s rebuffed Richard Nixon? Where would Chief Justice Roberts and Justice Alito stand? I think we probably do know where Justices Scalia and Thomas would stand, but who knows about Justice Kennedy? I don't know the answer to these questions, but I do know that Americans might lose a lot if Democrats follow a strategy that puts this matter before today's Supreme Court. The justices could revisit that old argument between Bryon White and William O. Douglas, and there's really no telling how it would end up. There is a substantial risk that an ultra-reactionary Supreme Court that would hold that it's OK for the president to authorize a wiretap without asking for a warrant. Then it would be legal for George W. Bush to do what he's doing. It wouldn't be proper, but it would be legal. When I practiced law, I made some radical arguments from time to time. However, I was never one of these glib sycophants who would tell a client or a potential client what I thought he or she would like to hear. What's just is one thing, what's legal is something else, and sometimes the two concepts are very different. A lawyer's job is to review the totality of the law, including the politics of it, and give the client a best estimate of how a given legal dispute would end. I am not a lawyer. I'm a former lawyer who publishes an online newspaper, and the local chapter of Democrats Abroad asked to give an opinion on this legal matter. My advice is that what George W. Bush is doing violates the plain meaning of the law and spits on the oldest and most honored American traditions. But he, along with other Republican presidents, has packed the Supreme Court to the point that it's not easy to predict how it would rule about warrantless electronic surveillance. I think that Americans would be much better advised to redeem lost freedoms at the ballot box than through court cases or impeachment proceedings. The thing to do about warrantless wiretaps is to take both houses of Congress away from the Republicans in November.
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