2-28-06, 2:00 pm
In case there was any room for doubt, President George W. Bush’s reliance on his big brother no longer refers to Florida Governor John Ellis “Jeb” Bush. Nor would he be referring to Janis Joplin’s original backing band. Big brother, in Bush’s case, now clearly is the National Security Agency (NSA).
It has recently been revealed that Bush signed a highly classified executive order in 2002 which gave the NSA the authority to conduct electronic monitoring of both US citizens and foreign nationals residing in the United States. While details of the secret program remain sketchy, it has been confirmed that the surveillance includes monitoring e-mail, telephone calls and other forms of communication. Thousands of people may have been affected by this program.
It has also been reported in the media that the justification for the use of the NSA came from a classified memorandum written by Justice department official John C. Yoo, who was earlier involved in the writing of another departmental memorandum which contained a very narrow definition of what could be said to constitute torture. That memorandum, not signed by Yoo, was disavowed by the Justice Department after its existence was disclosed.
The “Super Secret” National Security Agency
The National Security Agency (NSA) is often referred to in the media as a “super secret” agency. Although the NSA was established in 1952, its existence wasn’t officially acknowledged until decades later. Author James Bramford, in his book, The Puzzle Palace: Inside America’s Most Secret Intelligence Organization, first published in 1982, was the first writer to bring the NSA to broad public attention. Concerns about whether the NSA was involved in domestic surveillance 23 years ago were but rumors until the disclosure of Bush’s secret order was made public.
The NSA exists for the purpose of code breaking known as cryptology. Its official Web site states that:
The National Security Agency/Central Security Service is America’s cryptologic organization. It coordinates, directs, and performs highly specialized activities to protect US government information systems and produce foreign signals intelligence information. A high technology organization, NSA is on the frontiers of communications and data processing. It is also one of the most important centers of foreign language analysis and research within the government.
The Agency’s website goes on to describe its key focus as including both signals intelligence (SIGINT) and information assurance. The former involves monitoring of communications while the latter, according to the NSA, involves insuring that the US government’s classified information remains secure.
The NSA also, along the way, takes credit for the development of the super computer, the cassette tape, the microchip, quantum mathematics, nanotechnology, biometrics and semiconductor technology. The NSA is headquartered at Fort Meade, Maryland which, its website helpfully notes, is “between Baltimore and Washington, DC.” NSA operates a “national spy museum,” the National Cryptologic Museum, which is open to the public. It also is an aggressive recruiter on the nation’s campuses.
While the NSA may indeed be on the frontiers of communication and data processing, the agency may also find itself on the frontiers of Congressional hearings now that Bush’s secret directive has been exposed.
The Rule of Law and Intelligence Gathering
One of the most astonishing elements in the disclosure of the Bush directive and the NSA is that it may be the first time a president has authorized a government agency to engage in what could be construed as criminal conduct under the law, the Foreign Intelligence Surveillance Act (FISA). Richard Nixon, to be certain, attempted to use IRS audits and other means to harass his perceived enemies, but his efforts pale in comparison to Bush’s order.
FISA, 50 U.S.C. 1801, declares it to be illegal for government agencies engaged in foreign intelligence and counterintelligence activities, including both the NSA and CIA, to engage in domestic intelligence activity against US citizens except under the most restrictive of circumstances. The Federal Bureau of Investigation (FBI) as the investigative arm of the US Justice Department has historically had responsibility for domestic intelligence gathering, and the abuses of that agency have been well documented.
The National Security Administration is hardly unaware of the statute. In February of 2000, the NSA submitted a report to the Congress as required by the 2000 Intelligence Authorization Act. This report, entitled “Legal Standards for the Intelligence Community in Conducting Electronic Surveillance” made the following points:
Electronic surveillance is conducted by elements of the Intelligence Community for foreign intelligence and foreign counterintelligence purposes. Because of its potential intrusiveness and the implications for the privacy of United States persons, such surveillance is subject to strict regulation by statute and Executive Order and close scrutiny. The applicable legal standards for the collection, retention, or dissemination of information concerning US persons reflect a careful balancing between the needs of the government for such intelligence and the protection of the rights of US persons, consistent with the reasonableness standard of the Fourth Amendment as determined by factual circumstance.
The Fourth Amendment to the Constitution provides:
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.
The executive order referred to in the NSA’s report to Congress in 2000 was Executive Order 1223, which complimented the FISA in attempting to balance the need for national security while protecting the constitutional liberties of US citizens. According to the NSA report:
Both documents reflect a deference to US persons’ rights by closely regulating the conduct of electronic surveillance that either targets US persons or may result in the acquisition of information to, from, or about US persons. For example, in order to conduct electronic surveillance against a US person located within the United States, FISA requires the intelligence agency to obtain a court order from the Foreign Intelligence Surveillance Court. If the United States person is abroad, the Executive Order requires that the Attorney General approve such surveillance. In both instances, generally speaking there must be probable cause that the target is an agent of a foreign power. In addition, the information sought by the surveillance must be foreign intelligence that cannot be obtained by other less intrusive collection techniques. Furthermore, even if a US person is not the target, all foreign intelligence electronic surveillance must be conducted in a manner that minimizes the acquisition, retention, and dissemination of information about unconsenting US persons. Information about a US person who is not an approved target, if lawfully acquired incidental to the authorized collection, may be retained and disseminated if it amounts to foreign intelligence or counterintelligence; otherwise, it may not be retained or disseminated.
One element of Executive Order 1223 that has particular resonance for today is the following comment in the NSA report.
Pursuant to 2.3 of E.O. 12333, there may be other instances where [intelligence on US citizens] may be collected, such as with the consent of the person concerned or where the information is needed to protect the safety of any persons or organizations, including those who are targets, victims, or hostages of international terrorist organizations.
NSA may only target communications of a US person in the United States if a federal judge finds probable cause to believe that the US person is an agent of a foreign power. Probable cause exists when facts and circumstances within the applicant’s knowledge and of which he/she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power. Under the statute, a judge may determine a US person to be an agent of a foreign power only if there is information to support a finding that the individual is a spy, terrorist, saboteur, or someone who aids or abets them.
The Foreign Intelligence Surveillance Court (FISC) meets at the Justice Department. As can be expected, most of its decisions are classified and not available for public scrutiny. However, the Justice Department is required by FISA provisions to report annually to Congress. On April 1, 2005 the report was sent to Speaker of the House Dennis Hastert by Assistant Attorney General William E. Moschella along with an unclassified cover letter which advised that during 2004 there were 1,758 applications for FISC approval of surveillance and intelligence gathering. Of these, the government withdrew three applications. The FISC did not disapprove any of the applications.
The Supreme Court has also been called on to address the issue of government surveillance on US citizens. In the case of Katz v. United States of America (1967), the court held that the Fourth Amendment applied to surveillance which did not include any physical intrusion, but stated that the position taken by the court did not extend to matters of national security. In the Keith case from 1972, however, the court did suggest that since national security considerations were fundamentally different from traditional crime that Congress would want to consider affording US citizens protections consistent with the Fourth Amendment, a precursor of the FISA.
The Bush Administration Goes to War on the Constitution
While it may be fashionable to trace the Bush administration’s animosity to constitutional constraints on its power to the tragic events on September 11, 2001 there were harbingers of things to come even before that infamous date. The 2000 elections, which saw Bush’s highly questionable victory over then Vice President Al Gore, revealed the utter contempt of the Republican Party machinery toward the Constitution. In Florida, the term “pregnant chad” entered the language as part and parcel of a disenfranchisement of voters throughout the state who, according to demographics, were solidly inclined to vote for Gore. This process was aided and abetted by Florida Secretary of State Katherine Harris, now serving in the House of Representatives for Florida’s 13th district. Similar issues occurred elsewhere (and in Ohio during the 2004 election).
In one of those ironies that would be amusing if it weren’t so frightening, the Supreme Court effectively decided Bush’s 2000 victory, a first in the history of the Supreme Court and the nation. In view of the Bush administration and the ultra-right’s hostility toward the judiciary, one is tempted to wonder how they reconcile their philosophical and political positions with the gift they were given by the court five years ago.
To use one of Bush’s favorite expressions, make no mistake, September 11, 2001 merely provided the ultra-right with the pretext they needed to pursue their ultimate agenda: the consolidation of an unprecedented degree of power along with efforts to marginalize their opposition by portraying them as either unpatriotic or fools.
Toward this end, the Bush administration and its allies steamrollered Congress into the passage of the USA Patriot Act. In addition to its other provisions, the USA Patriot Act also amended the FISA. It increased the number of judges serving on the Foreign Intelligence Surveillance Court (FISC) and allowed roving or multi-point surveillance under FISA. Access to business records was substantially amended along with the following very significant change in the statute: Where prior to the passage of the USA Patriot Act, an agent seeking an order from the FISC would have to certify that obtaining foreign intelligence information was the sole purpose of the surveillance, under the current, amended, rules the agent has to certify only that foreign intelligence is a “significant purpose” of the surveillance.
The USA Patriot Act is, of course, full of vague language subject to interpretation, but from the above amendment it can be seen that the once rather precise FISA has been similar affected. Such language opens the door to government-sponsored activities that would have previously been abuses. As of this writing, the Senate has approved a six month extension of the USA Patriot Act, a victory over Republicans who were insisting on nothing less than a permanent reauthorization. The act, which would have expired December 31, 2005, is headed to the House of Representatives.
Bush is said to be furious at the disclosure of his secret directive to the NSA, but it is useful to remember he was not so furious about the media leak which resulted in the disclosure that Valerie Plame, the wife of Ambassador Joseph Wilson, was an undercover officer for the CIA, after Wilson publicly expressed his differences with the Bush administration’s policy in Iraq. The reason for the distinction, it is clear, is the ultra-right’s utter vindictiveness toward anyone it perceives as a threat along with a moral rectitude that the ends justify the means. The disclosure of Plame’s identity was intended to hurt a critic of the administration, notwithstanding the fact that they were complicit in disclosure of classified information.
The exposure of the Bush directive authorizing NSA intrusion into domestic intelligence gathering, on the other hand, is an embarrassment to a president who has gone to extraordinary lengths to portray his administration as guardians of American freedom. Moreover, some of the Republican Party’s biggest financial supporters, the so-called “Republican Eagles,” are staunch libertarians opposed to government intrusion who believe in the traditionally Republican message of “less government.” It is too early to tell if this latest disclosure might cause some of those “Republican Eagles” to start molting, if not bolting.
The problem for Bush, however, is that even with the expansion of intelligence gathering opportunities presented by the amendments to the Foreign Intelligence Surveillance Act, by way of the USA Patriot Act, there still must be an order from the FISC. Because the capabilities of the NSA are so vast and indiscriminate (the NSA has been compared to a vacuum cleaner sucking up all manner of communications), it seems highly doubtful FISC orders could have been formally sought. And as flawed as that is, since due process is not afforded (and generally isn’t in the seeking of warrants), it still represents the intent of Congress to provide a measure of Fourth Amendment protection. It might be tempting to view this latest revelation of the Bush administration’s fight against civil liberties as anomaly or fluke. Sadly, this is not the case.
The FBI: Cointelpro for the 21st Century?
There have been a number of disclosures in recent months that the FBI, as the investigative arm of the Justice Department, is back to the tricks it honed under the leadership of J. Edgar Hoover. Hoover’s sole ambition was to establish the FBI as the nation’s foremost crime solving and intelligence gathering organization and, not coincidentally, to insure for himself absolute control over that agency. He attained the latter when President Lyndon B. Johnson appointed Hoover the director of the FBI for life. Nothing is more indicative of the culture that evolved in the FBI during the Hoover years than the acronym used for the agency’s headquarters: SOG which stood for “Seat of Government.”
In the wake of Hoover’s death in 1972, and the disclosures of FBI abuses in the late 1970s by the Church Committee in 1978, Congress intended to have oversight over the FBI’s operations and budget to a degree that proved impossible during Hoover’s reign.
Under the leadership of its current director, Robert S. Mueller III, and emboldened by the USA Patriot Act, the FBI seems to have returned to its old style of harassing political opponents, visiting their workplaces, and in the process hurting people who have no connection to terrorist activities or any other crime with which the FBI is charged with investigating.
While maintaining a legal fiction that it has no interest in organizations or in individuals who dissent from government policies, it has recently been disclosed that the FBI has had a file for years on the American Civil Liberties Union (ACLU), and more recently organizations like People for the Ethical Treatment of Animals (PETA) as well as on vegetarians. Now, the ACLU makes perfect sense. Since the administration is so hostile to the Constitution, it stands to reason that an organization like the ACLU, committed as it is to the protections of the Constitution and the Bill of Rights, would be regarded as subversive. Why individuals and organizations who seek to protect animals or who don’t eat meat would somehow be a threat necessitating files maintained by the FBI, the administration has thus far failed to say.
A second legal fiction is that the special agents of the FBI are investigators who are simply engaged in the finding of fact and who do not allow personal or political judgments to enter into their thinking. This legal fiction was exposed by the disclosure of FBI monitoring of the Catholic Worker movement which the bureau portrays, according to the media, as a “semi-communistic” movement.
Perhaps the use of the word “Worker” is what led someone at the FBI to assume the Catholic Worker movement was “semi-communistic.” A little homework, however, reveals nothing “semi-communistic” about the Catholic Workers. The movement was founded by Dorothy Day, whose orientation toward the Catholic Church led her to a frequently expressed anti-Communism. Day was one of the non-Party members who were invited to attend the party’s 16th National Convention held in New York in 1957, and who was one of a group of observers who reported on the democratic nature of the convention. This group also included A.J. Muste and Bayard Rustin, both of whom were staunch anti-Communists. There is certainly a progressive element to the Catholic Worker movement, which has been involved in setting up and running hospitality houses for those who are poor and/or homeless, as well as advocating a more progressive direction from the church’s hierarchy in the Vatican.
Defeating the Ultra-Right
It is too soon to tell whether the Bush administration’s flagrant disregard of the Fourth Amendment of the Constitution will result in his censure or impeachment. The Republican majority in Congress, as well as the historical fact that no President has been impeached during a time of active military engagement, would seem to make either course a difficult proposition politically.
Still, the importance of a movement to censure or impeach will carry heavy, symbolic weight even if unsuccessful. It would represent a rejection of the Bush administration’s contempt for civil liberties and the Bill of Rights.
When Richard Nixon unleashed the “Saturday Night Massacre” and sent FBI agents to seal the offices of the Watergate special prosecutor in October of 1973, office spokesman James Doyle announced his plan to “go home and read about the Reichstag Fire.”
Nixon wasn’t Hitler of course. Nor, for that matter, is Bush. But the strategic parallels are staggering:
• Hitler was appointed by Chancellor Hindenburg despite lacking plurality at the polls. Bush was, in effect, appointed by the US Supreme Court while losing the popular vote. • Hitler used the Reichstag fire, which history discloses was probably set by the Nazis, as the pretext to suspend civil liberties in Germany with the consent and active involvement of its Parliament, not without opposition. Bush has used the terrorist attacks in New York and Washington to give the administration broad and sweeping powers contrary to previously existing law, also with the consent and active involvement of the Congress, likewise not without opposition. • Hitler pursued anti-working-class policies, painted his opponents as unpatriotic, while the policies he did pursue initially benefited Germany’s financial barons. The Bush administration is anti-working class, paints its opponents as unpatriotic, and has been oriented toward benefiting monopoly capital.
Notwithstanding the similarities, the United States remains a federal republic, not a fascist one. There remains an active, progressive movement which – while it may or may not be subject to increased surveillance now or in the future – continues to organize and to advocate. The Communist Party, USA is a legal political party and continues to grow and to participate in all of the important arenas of struggle that affect our working class and our people.
Despite the recent, small increase in Bush’s approval rating, according to polls, he and his administration continue to be on the offensive. Special Prosecutor Patrick J. Fitzgerald continues his investigation into administration involvement in the leak to the media of former CIA operative Valerie Plame’s identity, and opposition to the US military occupation in Iraq, led by organizations like United for Peace and Justice, Veterans for Peace and other groups continues to grow. The Bush administration fears the light that has been focused on them, for they know they haven’t a chance to ever win popular support.
They also fear the upcoming midterm elections. On the local level, Republican incumbents are being soundly thrashed. In New York, Senator Hillary Clinton’s would-be Republican opponent has dropped out of the race. GOP candidates are becoming increasingly hesitant to tie themselves to the president’s political coattails. For all their bluster and machinations, many Republicans are scared. The intent of the administration’s increased surveillance policies and programs are geared toward frightening people and squelching opposition.
These policies are benchmarks not of political strength, but insecurity. The ultra-right fears opposition and they particularly are afraid of unity shown by their opposition. While they might deny it, they know the truth in the chanting of thousands and millions of voices: “The people, united, will never be defeated.”
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