Checks and No Balance


The domestic spying controversy is a story of immense importance. President Bush, by secret directive a few months after 9-11, allowed the National Security Agency, restricted by law to monitoring only foreign communications, to carry out a domestic spying program as well. This directive, now uncovered, is the latest clear confirmation that the president has been conferring more power on himself—without any checks or balances by Congress or the judicial system.

While previous presidents have at various times claimed the legal right to authorize searches and electronic surveillance without court warrants so as to gather foreign intelligence, those decisions have undergone scrutiny by either courts or congressional hearings.

It’s fair to say that Bush had no intention of allowing public scrutiny of his act, since he personally summoned the top executives of The New York Times to a private meeting on December 6 and pressured them not to run the story about the domestic spying. The paper had held the story for a year at the administration’s pleading but decided, after second thoughts and more reporting, that its importance required publication. It appeared on the Times‘ front page on Friday, December 16.

Some Bush supporters have attacked the Times
for running the piece. On the other hand, some journalists have attacked theTimes for holding it for a year. From where I stand (I’m a Times alumnus), the paper should get credit for digging it out and publishing it. But whatever one’s journalistic point of view, the Times‘ decision-making is not the central story here. The president’s secret directive is.

The president and others in his White House said the leak of his decision to bypass existing law was a serious national security matter and hinted at an investigation. They argued that the existing Foreign Intelligence Surveillance Act (FISA), which requires court warrants and does not allow domestic spying by the National Security Agency, was not designed for an era of terrorism.

Since 9-11, Bush and his inner circle have insisted vehemently that all of the administration’s anti-terrorism acts at home and overseas have been done in accordance with U.S. law and the Constitution.

But listen carefully to the president’s own earlier statements, keeping in mind that the domestic spying operation has been in effect since early 2002.

On April 19, 2004, in Hershey, Pennsylvania, Bush said, speaking of anti-terrorism wiretapping: ” . . . Everything you hear about [wiretapping] requires [a] court order, requires there to be permission from a FISA court, for example.” Of note: A member of the FISA court just resigned from the 11-member federal panel in protest against Bush’s secret domestic-spying program. The Washington Post reported that U.S. District Judge James Robertson sent his resignation letter to Chief Justice John Roberts on December 19.

On April 20, 2004, in Buffalo, New York, Bush said: “Any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order.” He added: “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

On December 16, 2005, the day the Times story appeared, the president—interviewed on Jim Lehrer’s NewsHour—would not discuss his domestic-spying directive (“We . . . don’t talk about ongoing intelligence operations”). “But,” he said, “it’s important for the American people to understand that we will do—or I will use my powers to protect us, and I will do so under the law.”

All the president’s above statements about observing the court-order requirement and thus acting “under the law” would appear to be false.

They are false by the same measure that showed his weapons-of-mass-destruction claims to be false—after he misled the nation into war. And what about the misdirections and untruths the White House has promulgated about secret CIA prisons on foreign soil, or about violations of the Geneva Conventions against torture of prisoners, or about an operational link between Al Qaeda and Saddam Hussein, or about blaming the press for alerting Osama bin Laden to U.S. electronic surveillance techniques when the information has been in the public domain for years?

The lies—after all, that’s what they really are—have become so numerous that reasonable people are beginning to hear echoes of the Nixon presidency and impeachment. Think about all those rosy “trust me” speeches Bush has been delivering.

As for his drumbeat claims that he is honoring the Constitution and the nation’s laws, then why did a FISA judge resign, and why are his colleagues now demanding intelligence briefings on the president’s secret sidestepping of their jurisdiction? Why are moderate Republicans leaving Bush’s side over these issues—all of which have their origin in the president’s self-expansion of power as he devised the invasion and ongoing war in Iraq?

George Bush and his ultra-conservative Republicans didn’t invent the art of presidential spinning and hiding of truths and the “modified limited hang-out.” We’ve been lied to before. But this presidency has lifted these arts to new and scary heights. It has effectively sneered at the Founders’ basic principle of checks and balances. A few days ago, Vice President Dick Cheney explained the rationale behind the secret domestic spying by saying that Watergate and Vietnam significantly eroded presidential powers and the Bush regime is merely trying to restore them. He actually said that.

The words and deeds of these White House residents point to other conclusions. They seem to be reaching for virtually unchecked power—power even to override laws at will in a nation founded on the rule of law.

This president promised to restore “honor and integrity” to the White House. And when he was elected to a second term, he said happily and boldly to a press conference: “You asked, do I feel free. Let me put it to you this way. I earned capital in the campaign, political capital—and now I intend to spend it.”

His bypassing the law, was that what he meant by those promises? Could the president actually have forgotten that in this country, the monarchy was abolished—and any autocracy forbidden—more than two centuries ago?

Striking differences

New York City used to think of itself as a union town that had some empathy for working people. Now, we seem to be in a more Darwinian mood.

In the transit strike that lasted only three days, the city’s newspapers showed little good feeling for the grievances of the struggling workers. The tabloids tended to bare their flesh-eating teeth, particularly the New York Post, which labeled the strikers as dregs of society and greedy rodents—using the kind of venom the paper usually reserves for rapist “fiends.” One Post banner headline was, simply: “You Rats.” All those years ago, the Post used to care about working people. Now it’s a Murdoch paper.

On local television, more often than not, the cameras brought us scenes of raging subway riders and commuters. That’s known in TV land as giving the viewers “red meat.”

I mention this sociological sea change not to take sides or suggest that the hardships for subway and bus riders weren’t severe. I merely note that some of us carry memories from earlier times, when Mike Quill of the Transit Workers Union and Mayor John Lindsay traded theatrical insults (Quill called him “Mayor Lindsley” to annoy him). It was a time when the public seemed to roll better with the punches and to accept a short strike partly as urban theater. This time, when Mayor Bloomberg called the union “selfish” and “thuggish,” he seemed to mean it.