Glenn Greenwald of Unclaimed Territory has an excellent analysis of the issues involved in the latest news on the NSA spy program -- against us, in No need for Congress, no need for courts and Legal issues governing the Administration's newly disclosed surveillance program. See also, Anonymous Liberal's comments on the legal issues, at The Who Authorized the NSA to Acquire Your Phone Records? You Did. In Greenwald's first post, he notes:
We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet . . . each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.As Greenwald says, this pattern of activity raises political concerns as well as legal problems. Ultimately, these issues go to the basic fabric of our form of government. As each new intrusion by the Administration is revealed, we are one step further removed from a democracy. At some point, we reach the tipping point, beyond which we cannot lay claim to having a democracy as our form of government. There are some who shrug, bemoaning the fact that we don’t have much privacy these days anyway. That said, what’s the difference if the government looks at our information. I certainly would strenuously disagree that the relinquishment of our privacy and other constitutional rights and protections is a step I would ever concede without a fight. However, if that were to happen, we would have to acknoweldge that we have a difference form of governance going forward. Whether it was determined to be a monarchy or dictatorship or some other appellation I would leave to the history scholars, who understand the nuances of the distinctions better than I. I only know a democracy and I know that wouldn't apply.
This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders.
Blogger Len Hart, of the Existentialist Cowboy, also writes in A Constitutional crisis in the making:
At the very heart of a looming crisis is the lie Bush told about the extent of widespread domestic Surveillance by the NSA. What Bush told us was a program of very limited surveillance is now revealed to have been the warrantless surveillance of tens of millions of Americans. That's bad enough, but it's made worse by the numerous lies Bush has already told about it. That the surveillance was limited is the most egregious lie —and quite possibly criminal.Our own political writer, Dick Polman of the Inquirer, was prescient in writing the other day about the "Bush administration's Orwellian impulse[s]." Listing several examples, in The Orwell administration, Polman explained:
In what sounds like a chapter out of George Orwell's 1984, every call is now chronicled in what has been called the world's largest database. Even Republican Sen. Arlen Spector has used the term "big brother" to describe the breathtaking extent of Bush's prying into the affairs of innocent American citizens. Contrary to what Bush has said repeatedly, the NSA —under the control and direction of Gen. Michael Hayden —created what has been called "[T]he largest database ever assembled in the world." The goal, according to USA Today, was ""...to create a database of every call ever made" inside the United States.
It is a compliment to the writer George Orwell that his name has become a household adjective. But rather than simply applying the term "Orwellian" to some of the latest news developments, let us first consult his classic novel 1984.In his blog, American Debate, All past statements are inoperative, Polman revisits that theme in light of the newest news. Citing a number of specific instances, he observes:
Chapter Four, to be precise:
In the government's Records Department, "(a) process of continuous alteration was applied not only to newspapers, but to books, periodicals, pamphlets, posters, leaflets, films, sound-tracks, cartoons, photographs....Day by day and almost minute by minute the past was brought up to date. In this way every prediction made by the Party could be shown by documentary evidence to have been correct, nor was any item of news, or any expression of opinion, which conflicted with the needs of the moment, ever allowed to remain on record. All history was...scraped clean and reinscribed exactly as often as was necessary."
All history scraped clean...That sums up the Bush administration's Orwellian impulse.
Once again, we are witnessing a presidential credibility gap.
In the wake of today's revelation that the National Security Agency since 2001 has been secretly amassing the home and business phone records of tens of millions of ordinary Americans, most of whom aren't suspected of any crime -- in other words, a purely domestic surveillance program -- it becomes necessary to revisit certain Bush administration statements, and to reclassify them as untrue.* * * *All those statements now appear inoperative, in the wake of today's report that the NSA successfully leaned on all the phone companies (except QWest) to cooperate in its purely domestic program to collect "external" data on millions of citizens, and ultimately, in the words of one inside source, "to create a database of every call ever made" in America. And, just as adherence to FISA was deemed unnecessary for the international program, adherence to Section 222 of the federal Communications Act was deemed unnecessary for the domestic program. (Under that law, phone companies are barred from releasing information on customer calling habits - such as who gets called, or how often. And the law also covers incoming calls.)
So now we have new operative statement from the president, issued earlier today. Considering the administration's record, it probably requires some parsing. He stated: "We're not mining or trolling through the personal lives of innocent Americans." That can be classified as a non-denial denial. Bush never specifically denied the news that the NSA has indeed been running a purely domestic program. He was merely insisting that the collection, analysis, and storage of people's phone call records should not equated with "trolling" through their personal lives.
The President rushed out this morning in the wake of this front page story in USA Today and declared the government is doing nothing wrong, and all this is just fine. Is it? Is it legal? Then why did the Justice Department suddenly drop its investigation of the warrantless spying on citizens because the NSA said Justice Department lawyers didn't have the necessary security clearance to do the investigation. Read that sentence again. A secret government agency has told our Justice Department that it's not allowed to investigate it. And the Justice Department just says ok and drops the whole thing. We're in some serious trouble, boys and girls."
If we have to rely on Specter to save us, as Will Bunch of Attytood put it, "God help us."