The pursuit of terrorism does not authorize the president to make up new laws. Thomas G. Donlan , “Unwarranted Executive Power,” Barron’s, page 1, December 26
William Kristol, usually a reasonable conservative—staunchly defending the president’s authorization of the National Security Agency’s warrantless spying on telephone calls and e-mails into and out of the United States—declared in the January 2 Weekly Standard, of which he is the editor:
“Was the president to ignore the obvious incapacity of any court [including the Foreign Intelligence Surveillance Court] to judge surveillance decisions involving the sweeping of massive numbers of cell phone and e-mails by high-speed computers . . . [during] the threat of imminent new attacks?”
Kristol ignored the fact—as the president continually has—that the law creating the Foreign Intelligence Surveillance Court permits the NSA to conduct its massive searches without first going to the FISA court in an emergency. The NSA then has 72 hours to go to the secret FISA court and get the warrant. Moreover, as John Riley reported in the best single analysis of this action by the master-spy president ( Newsday, “Eavesdropping Tests Legal Limits,” December 26), “Even longer periods [than 72 hours] are permitted in wartime.”
I do appreciate, however, William Kristol’s making clear that this unilateral, pervasive attack on what is left of Americans’ privacy rights under the Fourth Amendment involves a huge, ever expanding data bank—the data mining of which was indicated by Washington Post columnist William Arkin:
“Massive amounts of collected data-—actual intercepts of phone calls, e-mails, etc.—together with ‘transaction’ data—travel or credit card records or telephone or Internet service provider logs—are mixed through a mind-boggling array of government and private sector software programs to look for potential matches.” (Emphasis added.)
For more on how far and deep this data mining continues, though not acknowledged by Bush when he denounced The New York Times for its “shameful” breaking of the story of how he had let the NSA loose, see “Spy Agency Mined Vast Data Trove . . . Actions Without Warrants Are Called Wider Than Acknowledged” (The New York Times, page 1, December 24).
From that Times story: “A former technology manager at a major telecommunications company said that since the Sept. 11 attacks, the leading companies in the industry have been storing information on calling patterns and giving it to the federal government to aid in tracking possible terrorists.
” (Emphasis added.)
Abraham Lincoln publicly suspended habeas corpus during the Civil War and was told posthumously by the Supreme Court (Ex parte Milligan, 1866) that he had acted unconstitutionally. George W. Bush, in the war on terrorism, has secretly suspended the Fourth Amendment, with the complicity of private telecommunications companies. With John Roberts on the Supreme Court and Samuel Alito likely to be confirmed, it may be a long time before this administration is held accountable for this and other pillaging of the Bill of Rights. If the next administration continues in this vein, more of our liberties will turn into relics.
The Democratic Party has a huge responsibility in its choice of a candidate for the presidency in 2008.
As Bruce Schneier, chief technology officer of Counterpane Internet Security—and the author of Beyond Fear: Thinking Sensibly About Security in an Uncertain World—wrote in the December 21
Minneapolis Star Tribune:
“Unchecked presidential power has nothing to do with how much you either love or hate George W. Bush. You have to imagine this power in the hands of the person you most don’t want to be president, whether it be Dick Cheney or Hillary Rodham Clinton . . . ”
Meanwhile, the president and his apologists keep insisting that Bush had the approval of Congress for this omnivorous spying–—even though his “inherent executive power” as commander in chief presumably didn’t require that courtesy. After all, right after 9-11, Bush claimed, Congress gave him the authority to use military force against the terrorists. But as Democratic senator Russ Feingold, of Wisconsin, instructed him, and us, in a letter in the December 29 Wall Street Journal:
“Members of Congress, even in the shadow of Sept. 11, did not think that the military force resolution was giving the president blanket authority to order warrantless wiretaps of American citizens on American soil. Congress has not granted the president that power, nor has he requested it [of Congress].”
But, says Bush—in due respect to the separation of powers—he did consult certain members of Congress about unfettered NSA spying. Answers Russ Feingold:
“Informing a handful of congressional leaders who are prohibited from discussing what they have been told is not oversight, and congressional inaction under these extraordinary circumstances is not approval.”
How about Russ Feingold for president? Or if that seems too precipitous a step, it would be very useful for the Democratic Party and the nation to have a debate on the extent of constitutional executive powers— between Russ Feingold and Hillary Rodham Clinton!
As for our lawless president, Arlen Specter, chairman of the Senate Judiciary Committee, pledges penetrating hearings on the president’s allowing—and blessing-—the NSA’s watching over all of us. The White House will mightily resist this investigation in the name, of course, of national security, and there will be resistance from the congressional Republican leadership. Specter needs to hear from you.
In this war on terrorism with no definite end, the mettle of this democracy and its Constitution will be tested severely as to how far this or any future president can go in asserting his “inherent” powers.