The White House Is Listening

[[S C A N D A L S]] * What’s most astonishing about George W. Bush’s newly revealed Snoopgate scandal, which centers on his secretly authorizing the National Security Agency (NSA) to monitor--without showing probable cause or securing warrants--international telephone and e-mail communications originating in the United States, is that it spotlights previously unrealized depths of this president’s arrogance. Not even Richard M. Nixon, for all of his paranoia-bred covert stratagems, dared to so boldly contravene the constitutional limitations of presidential power as Bush does. Despite Attorney General Alberto Gonzales’ contention that the prez was only doing his duty as commander in chief and exercising authority he’d implicitly been given by Congress when it signed off on a resolution to make war on Afghanistan, following the September 11, 2001, terrorist attacks; and regardless of Bush’s insistence that he was “absolutely” on firm legal ground in ordering the NSA to eavesdrop on U.S. residents allegedly suspected of terrorist ties, the evidence seems pretty clear that the prez violated the Foreign Intelligence Surveillance Act of 1978 (FISA), which established rules regarding government monitoring of electronic communications. Nonetheless, Bush brazenly maintains that, even in the face of mounting criticism from both Democratic and Republican lawmakers, he’ll go right on supporting the NSA’s domestic spying activities “for so long as the nation faces the continuing threat of an enemy that wants to kill our American citizens.”

Such a statement might sound courageous, if it weren’t so patently pompous and indifferent to Bush’s obligation to uphold both the Constitution and the nation’s laws.

Senator Russ Feingold (D-Wisconsin) gave voice to the consternation so many U.S. citizens have felt in learning about Bush’s domestic wiretapping efforts when he said: “The President believes that he has the power to override the laws that Congress has passed. This is not how our democratic system of government works. The President does not get to pick and choose which laws he wants to follow. He is a president, not a king.”

The White House is busily trying to make the case that the Jimmy Carter-era FISA didn’t give it sufficient leeway to respond in a timely manner to modern terrorist threats. As Salon’s excellent War Room blog explains, the administration viewed FISA’s requirement that warrants be issued before eavesdropping as “foolish or even ‘quaint’” in the aftermath of the 9/11 attacks, as Bush sought to portray himself (with flight suit and all) as a “war president” and pass unrelated legislation under the guise of being essential to winning the “war on terror.”

They may have thought--as they apparently did--that the warrant requirement represented a constitutionally impermissible limit on the president’s power as commander in chief. There were ways to address such concerns. The administration could have gone to Congress to ask that FISA’s warrant requirement be amended. Or the administration could have gone to the courts to ask that the warrant requirement be overturned.

It did neither. The administration simply ignored the other branches of government and took it upon itself to do what it wanted to do. It violated the Foreign Intelligence Surveillance Act. And in the process, it obliterated the notion of separated powers built into the U.S. Constitution. As Sen. Lindsey Graham, a Republican, said over the weekend: “Even in a time of war, you have to follow the process, because that is what a democracy is all about: a process.” Graham said he couldn’t think of any legal justification for making an end run on FISA. Another Republican, Senate Judiciary Committee Chairman Arlen Specter, proclaimed Bush’s actions “wrong, clearly and categorically wrong.”

Obviously, Bush & Co. understood--their rhetoric aside--that they didn’t have the legal or constitutional right to engage in such surveillance. “Had the administration really believed it had congressional consent for spying on Americans at home,” editorializes the usually Bush-friendly Chicago Tribune, “it could have asked for legislation to affirm that. It didn’t, for the obvious reason that Congress would not have agreed.”

Furthermore, the White House’s campaign to prevent The New York Times from publishing what it knew about this eavesdropping program--which delayed revelations of the program’s existence until after the 2004 presidential election--shows just how significant was concern that Bush had acted unconstitutionally. As Jonathan Alter writes in Newsweek, the administration’s complaint against the Times article

was not that the disclosures would compromise national security, as Bush claimed at his press conference. His comparison to the damaging pre-9/11 revelation of Osama bin Laden’s use of a satellite phone, which caused bin Laden to change tactics, is fallacious; any Americans with ties to Muslim extremists--in fact, all American Muslims, period--have long since suspected that the U.S. government might be listening in to their conversations. ...

No, Bush was desperate to keep the Times from running this important story--which the paper had already inexplicably held for a year--because he knew that it would reveal him as a law-breaker. He insists he had “legal authority derived from the Constitution and congressional resolution authorizing force.” But the Constitution explicitly requires the president to obey the law. And the post-9/11 congressional resolution authorizing “all necessary force” in fighting terrorism was made in clear reference to military intervention. It did not scrap the Constitution and allow the president to do whatever he pleased in any area in the name of fighting terrorism. ...

This time, the president knew publication would cause him great embarrassment and trouble for the rest of his presidency. It was for that reason--and less out of genuine concern about national security--that George W. Bush tried so hard to kill the New York Times story.

There’s no telling yet how much trouble this scandal might raise for Bush. Already, though, Congress seems prepared to beef up its oversight of the White House. Coming on the heels of increasing international concern about secret U.S. prisons for the detention of Al Qaeda suspects and hard-won legislation (originally opposed by Bush and Dick Cheney) to ban the use of torture against detainees in U.S. custody, Snoopgate has the potential to further erode trust in the prez--already at a low ebb--and raise more questions about Bush’s little-by-little expansion of executive-branch power.

The likelihood is that Republicans--already smarting under charges that they’ve created a “culture of corruption” in Washington, D.C.--will endeavor to quash a full-scale investigation into Snoopgate, as they have so many of Bush’s previous outrages (the CIA leak scandal, the Hurricane Katrina fiasco, the uses and abuses of intelligence relating to Iraq’s nonexistent weapons of mass destruction, etc.). But Senator Specter (R-Pennsylvania) is already on record promising to begin hearings into Snoopgate early next year--a move Bush suggests he’ll oppose vigorously. (“The fact that we’re discussing this program is helping the enemy,” the prez contends.) There’s even talk of a Bush impeachment, should it be found that he broke laws or violated the Constitution by authorizing the NSA’s actions--and that talk isn’t coming exclusively from Democrats, but also from conservative scholars. Although booting Bush out of office for “high crimes and misdemeanors” seems, at this point, less than likely, the odds might increase if Democrats win big in the 2006 midterm elections (which polls suggest is a real possibility). The best Bush might hope to do in the short-term is something at which he has proven himself adept: changing the subject. If he can convince the attention-challenged media that they ought to be looking into whoever revealed this domestic spying effort (a “shameful act,” Bush complains), rather than continue to question his legal or moral authority in authorizing the NSA program in the first place, then he can probably ride out the harsh winds of public censure. At the same time, he’s doing everything he can to innoculate himself from blame for this potential violation of civil rights by insisting that Democrats were briefed on the wiretapping matter--and consequently he cannot be blamed for employing “unchecked power.” However, a handwritten memo from Senator Jay Rockefeller (D-Virginia), the ranking Democrat on the Senate Intelligence Committee, makes clear that he and other members of his party had severe reservations about the administration’s effort to spy on Americans. Unfortunately, they were prohibited from voicing them--until now.

As remarkable as Bush’s arrogance is in all of this, it’s equally astounding that he doesn’t seem to understand why Americans should be concerned that the NSA might be monitoring their communications. And he fails to recognize that this scandal could have consequences across the breadth of his agenda. Last Friday, the U.S. Senate--in a major blow to the administration--failed to muster the votes needed to renew 16 provisions of the controversial USA PATRIOT Act that are scheduled to expire at the end of this month, with critics complaining that those provisions--passed with scant debate in the immediate aftermath of 9/11--infringe upon the privacy and rights of citizens. In response, Bush has fallen back on a hoary tactic, endeavoring to foment anger against Democrats by claiming that their opposition to the PATRIOT Act is making America vulnerable once more to terrorist assaults. (Of course, he says nothing about the four Republican senators who sided with Dems to reject the act’s reauthorization.) The prez doesn’t acknowledge that, as drastically as things changed after 9/11, they’ve continued to change since--and that what was acceptable in a moment of high national anxiety might not be so endorsable in a later period of calm reflection. Nor does Bush recognize that his domestic spying scandal, and what it says about his disregard for congressional oversight, endangers those sunsetting provisions of the PATRIOT Act even further. He is still operating as it the date were stuck at September 13, 2001, while the rest of the country has moved on.

There’s danger in such willful self-delusion. What the domestic spying scandal makes most clear, writes Newsweek’s Alter, is that “Bush thought 9/11 gave him license to act like a dictator, or in his own mind, no doubt, like Abraham Lincoln during the Civil War”--a president who could get away with subverting constitutional bounds for the good of the nation. Trouble is, the rest of the nation isn’t buying it anymore.

EVEN CONSERVATIVES DON’T TRUST BUSH: Bruce Fein, a constitutional lawyer and former Justice Department official under Ronald Reagan, writes in the right-wing Washington Times that “President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.”

IMPERILING OUR FREEDOMS: In a speech he gave on Monday, U.S. Senator Robert Byrd (D-West Virginia) addressed Bush’s defense of his executive order to begin eavesdropping on Americans: “The president claims that these powers are within his role as commander in chief. Make no mistake, the powers granted to the commander in chief are specifically those as head of the armed forces. These warrantless searches are conducted not against a foreign power, but against unsuspecting and unknowing American citizens. They are conducted against individuals living on American soil, not in Iraq or Afghanistan. There is nothing within the powers granted in the commander-in-chief clause that grants the president the ability to conduct clandestine surveillance of American civilians. We must not allow such groundless, foolish claims to stand.” Read on.

READ MORE: “Uncivil Liberties: Why Won’t the Bush Administration Obey the Law?” by Dahlia Lithwick (Slate); “Listening In and Naming Names: The Old Tricks of the National Security Agency,” by Patrick Radden Keefe (Slate); “Did Bush Lie About Wiretaps to Cover Up His Spying Program?” by Tim Grieve (Salon); “The Fog of False Choices” (The New York Times); “Clash Is Latest Chapter in Bush Effort to Widen Executive Power,” by Peter Baker and Jim VandeHei (The Washington Post); “Spying Program Snared U.S. Calls,” by James Risen and Erick Lichtblau (The New York Times); “Federal Judge Quits to Protest Warrantless Spying,” by Tim Grieve (Salon); “Bush’s Abuse of Power Deserves Impeachment,” by Joe Conason (New York Observer); “Why Times Ran Wiretap Story, Defying Bush,” by Gabriel Sherman (New York Observer); “The Echelon Myth” (Think Progress); “The Dynamic of a Bush Scandal: How the Spying Story Will Unfold (and Fade),” by Peter Daou (Salon).