[Marxism] What Is the Bush Administration Trying to Hide?

["Juan Carlos" <juancarloscruz@xxxxxxxxxxx>]

What Is the Bush Administration Trying to Hide?

David Wallechinsky

President George W. Bush began the new year by telling the American people
that his NSA domestic surveillance program was only used to monitor
communications between members of al-Qaeda and people in the United States.
He did not address the issue of why he deemed it necessary to bypass the
Foreign Intelligence Surveillance Court (FISC) that had, for 24 years, been
reviewing and approving such surveillance programs.  When the story first
broke, President Bush and his staff claimed to have done so because it took
too long to obtain a warrant.  This lame excuse fell apart within hours when
it was revealed that the law already gave them the right to engage in
surveillance for 72 hours without a warrant.  So the question remains:  What
is the real reason George Bush and his team chose to bypass the FISC?

We know that between 1978 and 1992, presidents Carter, Reagan and Bush
presented 7,030 applications for warrants and the court approved all of them
as submitted.  During his eight years in office, President Bill Clinton and
his Justice Department presented 6,057 warrant applications.  The FISC
approved 6,055 of them, modified one and rejected one.  This is not to say
that there was no controversy involving the program.

According to the Federation of American Scientists? archive of documents
relating to the Foreign Intelligence Surveillance Act of 1978, problems
developed in 2000.  In one case, the FBI assured the court that they had
developed software that allowed them to pick up a surveillance target?s
emails without accessing anyone else?s emails.  But when the software was
activated, it did access the email accounts of people not covered by the
warrant.  In another case, the FISC had approved surveillance of a target?s
phone calls and email.  When it came time to renew the warrant, the FBI
asked to continue wiretapping the target, but said they no longer needed to
check his email.  So the FISC approved a new version of the warrant that
excluded email coverage.

Nevertheless, the FBI continued to cover the target?s email anyway.  Other
cases included FBI videotaping of a meeting even though videotaping had not
been authorized, unauthorized searches and continuing surveillance after
warrants ran out.  In one case, the FBI failed to notice that a target had
given up his cell phone and that the cell phone number had been reassigned
to a new person.  The FBI continued this electronic surveillance ?for a
substantial period of time? even though the new owner of the cell phone
number spoke a different language than the target.  Despite these problems,
the relationship between the executive branch and the FISC appears to have
remained harmonious, as indicated by the fact that the court approved
without modification 99.97% of the Clinton Administration requests.

All this changed after George W. Bush became president.  The court rejected
six requests outright and modified 179.  Some Bush supporters have tried to
characterize the FISC justices as liberal obstructionists.  In fact, all
eleven members of the Bush-era FISC were selected by conservative Supreme
Court Chief Justice William Rehnquist.

The Foreign Intelligence Surveillance Act of 1978 (FISA) that created the
FISC also provided for a three-member Foreign Intelligence Surveillance
Court of Review to review applications denied by the FISC.  All three
current members of this court were appointed by Chief Justice Rehnquist
during George W. Bush?s presidency.

After 24 years of idleness, in September 2002 the Court of Review heard its
first case because the Bush Administration tried to expand the coverage of
FISA jurisdiction to allow prosecutors and local law enforcement agencies to
be involved in the surveillance program and to have access to information
obtained through the surveillance.  FISC modified their requests before
accepting them and the Bush Administration appealed.

At the September 9, 2002, hearing before the Court of Review, the Bush
Administration was represented by ten members of the Department of Justice,
led by Solicitor General Theodore B. Olson, who had become famous when he
presented the Bush-Cheney case to the Supreme Court during the 2000
presidential election dispute.  Other notables included James A. Baker, in
his role as counsel for the Office of Intelligence Policy and Review, and
John C. Yoo, the administration go-to guy to legally justify anything the
Bush Administration wants to do.  The Justice Department team was joined by
Spike Bowman, a lawyer for the FBI, and David S. Addington, a lawyer
representing Vice-President Cheney?s office.  Lawyers supporting the FISC
decision were not allowed to be present, so the ACLU and others later
submitted a written brief to the three justices.  The convening of the Court
of Review was so novel that the justices had to ask the Justice Department
lawyers who submitted the surveillance applications (the Attorney General?s
staff) and how often the FISC met to consider the applications (once a
week).

Olson argued that a FISC-approved surveillance could uncover information
about a suspect that, although totally unrelated to terrorism, might
indicate illegal or illicit activities that could then be used to blackmail
or intimidate a terrorism-related suspect into cooperating with the
authorities.  Such a prosecution or threat of prosecution would be approved
by the Attorney General who, at the time, was John Ashcroft.  It is worth
noting that FISA warrants are issued based on a lower than usual standard
that does not require probable cause, and that if a FISA-approved
surveillance leads to a prosecution, the targets may not be allowed to
obtain copies of their intercepted communications.


The Administration also wanted to change the phrase ?the purpose of the
surveillance is to obtain foreign intelligence information? to ?a
significant purpose of the surveillance?.?  This qualifying word could open
the door to all manner of other ?purposes? for surveillance.  When the Court
of Review judges tried to get the Justice Department officials to clarify
what other purposes there might be besides suspicion of terrorism or
espionage, Olson and Baker were evasive.  Exasperated, Judge Lawrence
Silberman said, ?I?ll try one more time and then I?ll give up.?   Olson
complained that the judges were asking ?very, very difficult questions? and,
in the end, Silberman never got his answer.


At one point in the proceedings, Judge Ralph B. Guy, Jr. found ?a touch of
irony? in the fact that after the Patriot Act had expanded the government?s
power of surveillance and after the FISC had gone 24 years without an
appeal, suddenly, for the first time, the government was complaining about
being restrained by the court.  Nonetheless, on November 18, 2002, the Court
of Review sided with the Bush Administration.

Yet despite this victory, and despite having the expanded powers of the
Patriot Act, President Bush and Vice-President Cheney were not satisfied
with the extent of their power and they began clashing with the FISC.  In
2003 and 2004, the court denied four of the Bush Administration?s
applications, forced them to withdraw three and modified 173.  In the 24
years prior to 2003, the court had voiced objections to a grand total of six
applications.

Of course it would be illuminating to know the exact nature of the
surveillance requests that led the FISC to issue this myriad of rejections
and modifications and whether George Bush went ahead with these
surveillances anyway.  It would also be interesting to know if the Bush
team, once it declared itself free of any judicial or Congressional
oversight whatsoever, decided to take advantage of the NSA surveillance
network to go beyond fighting terrorism to spy on people and organizations
for other reasons.  For example, did they use government resources to spy on
members of Congress, journalists, the Kerry campaign, opponents of the Bush
agenda, foreign corporations or members of the United Nations?  It would
also be useful to know why Bush and Cheney transferred the responsibility
for these surveillances from the FBI to the NSA, an agency which, in its 50
years of existence, had not previously been involved in domestic
surveillance.

Whatever the answers to these questions, possible grounds for impeachment
will probably center instead on whether Bush and Cheney are lying about what
they have done and whether they usurped powers that the Constitution grants
to the legislative and judicial branches of the United States government.
President Bush claims that after 9/11 Congress gave him the power to do
whatever he wants in fighting terrorism, including detaining suspects
indefinitely without charge and without access to legal counsel and
including engaging in surveillance of Americans without warrants.  This must
surely come as a surprise to most members of Congress, who were unaware that
they had done this.  Bush claims that as commander-in-chief of the armed
forces, he is free to use whatever tactics he wants.  This is a creative
interpretation of Article II of the Constitution if ever there was one.  As
far as the FISC rules go, if President Bush has decided that he is not
obligated to apply for warrants through the court, one wonders why he
bothered to do so 5,645 times during the first term of his presidency.

In the coming months it will be fascinating to watch as each Republican
member of Congress (and Joe Lieberman) decides whether he or she owes a
greater loyalty to President Bush or to the Constitution.  It is possible
that the members of the Supreme Court, some of whom pride themselves on
being strict constructionists, will face the same dilemma.

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