Freedom '06

The Hidden Bob Herbert (22 Jan 06 Edition)

Mr. Herbert is back on the NSA warrantless wiretapping controversy (aka, SnoopGate) with his Monday column, What's Left Unsaid (full column available to Times Select subscribers):

Freedom of speech in the United States covers matters trivial and profound. The corrosive damage that is being done to the First Amendment, that cornerstone of free speech, has been largely overlooked in the controversy over President Bush's decision to permit the government to eavesdrop without warrants on phone calls and e-mail messages inside the United States.

Most of the attention generated by this domestic spying program has understandably been focused on its affront to the Fourth Amendment, which prohibits unreasonable searches, and its brazen violation of the Foreign Intelligence Surveillance Act, which established clear-cut rules for electronic surveillance in the U.S.

But there's an additional danger. When the government's spies are allowed to snoop willy-nilly on phone calls and e-mail in the United States, without the important legal constraint of having to seek a warrant, it means that the all-important First Amendment has developed a chill, symptomatic of a life-threatening illness.

The ostensible aim of the president's domestic surveillance program, conducted by the supersecret National Security Agency, is to home in on communications into and out of the United States that involve individuals or organizations suspected of some sort of terror connection. But, as The Times reported last week, F.B.I. officials have repeatedly complained that the N.S.A. has bombarded them with thousands upon thousands of unsubstantiated tips - names, telephone numbers, e-mail addresses and so forth - that have either led nowhere, or to completely innocent individuals.

Whatever its stated goals, the N.S.A. seems to be operating the greatest fishing expedition in the history of the world.

The American Civil Liberties Union, in a lawsuit seeking a halt to the spying, warned that scholars, lawyers, journalists and others who communicate with people outside the U.S. are already experiencing a chilling effect. People who are doing nothing wrong, but who feel they may become targets of the program, for whatever reasons, are curtailing their conversations and censoring their correspondence, according to the suit.

Laurence Tribe, a professor of constitutional law at Harvard, noted that people who are aware of the surveillance program and who believe that their political views may be seen as hostile by the government, may also become less candid in their telephone conversations and e-mail. Others could unwittingly become the victim of contacts by individuals that the government may be interested in.

He gave an example:

"I recently got a series of e-mails from someone, quite without invitation, that got rather scary in the sense that they started saying positive things about Osama bin Laden. I asked the person in reply to stop e-mailing me, and I got an e-mail today saying, 'Your request is permanently granted.' But in the meantime, granted or not granted, that could easily put me on some kind of targeting list."

Tribe goes onto describe the slippery slope that we could all find ourselves sliding down:

"The background assumptions of privacy will be gradually eroded to the point where we'll wake up one day, or our children will, and it will seem quaint that people at one time, long ago, thought that they could speak in candor."

Keep this on the front burner, Mr. Herbert. According to Media Matters (hat tip to Daily Kos diarist mcjoan), the SnoopGate presidential/constitutional crisis hasn't been getting the love that a certain presidential/fellatial crisis back in 1998:

All told, on January 22, 1998, the Times and the Post ran 19 articles (five on the front page) dealing with the Clinton investigation, totaling more than 20,000 words and reflecting the words of at least 28 reporters -- plus the editorial boards of both newspapers.

In contrast, on December 17 [2005], the Times and the Post combined to run five articles about the NSA spying operation, involving 12 reporters and consisting of 6,303 words.

On February 25, 1998, 35 days after the story first broke, the Post ran four articles and an editorial about the Clinton investigation, totaling 5,046 words, involving 11 reporters, and the paper's editorial board. The Times ran four articles, two opinion columns, and an editorial -- seven pieces in all, totaling 5,852 words and involving at least six reporters and columnists, in addition to its editorial board. The papers combined for 12 articles, columns, and editorials, involving 17 reporters and columnists, as well as both editorial boards.

On January 20 [2006], 35 days after the NSA story first broke, the Times ran one 1,324-word article about the NSA operation written by two reporters. The Post ran one 945-word article written by one reporter. Combined: two articles, three reporters, 2,269 words.

We could go on and on with comparisons like these, and bring in other news organizations, but it should be clear by now that the nation's leading news organizations haven't given the NSA spying story anywhere near the coverage they gave the Clinton-Lewinsky matter. And, based on available evidence, they haven't dedicated nearly the resources to pursuing the NSA story that they dedicated to the Lewinsky story.

Speaking of SnoopGate, this article in The Nation by Elizabeth Holtzman (a former Congressperson who was also a member of the Judical Committee during the impeachment proceedings against President Richard Nixon) offers one of the most cogent arguments for bringing the idea of impeachment into the conversation and seriously giving it consideration in the House (which, of course, will never happen unless we can have some change of management in there this next November). It's a longish article, but worth it. Here's a section where she's debunking some of the defense of the BushCo administration's end-run around the Foreign Intelligence Surveillance Act (FISA):

Two legal arguments have been offered for the President's right to violate the law, both of which have been seriously questioned by members of Congress of both parties and by the nonpartisan Congressional Research Service in a recent analysis. The first--highly dangerous in its sweep and implications--is that the President has the constitutional right as Commander in Chief to break any US law on the grounds of national security. As the CRS analysis points out, the Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a "monopoly over war-powers" or recognized him as "Commander in Chief of the country" as opposed to Commander in Chief of the Army and Navy. If the President is permitted to break the law on wiretapping on his own say-so, then a President can break any other law on his own say-so--a formula for dictatorship. This is not a theoretical danger: President Bush has recently claimed the right as Commander in Chief to violate the McCain amendment banning torture and degrading treatment of detainees.
[...]
Given the framers' skepticism about executive power and warmaking--there was no functional standing army at the beginning of the nation, so the President's powers as Commander in Chief depended on Congress's willingness to create and expand an army--it is impossible to find in the Constitution unilateral presidential authority to act against US citizens in a way that violates US laws, even in wartime. As Justice Sandra Day O'Connor recently wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens."

The second legal argument in defense of Bush's warrantless wiretaps rests on an erroneous statutory interpretation. According to this argument, Congress authorized the Administration to place wiretaps without court approval when it adopted the 2001 resolution authorizing military force against the Taliban and Al Qaeda for the 9/11 attacks. In the first place, the force resolution doesn't mention wiretaps. And given that Congress has traditionally placed so many restrictions on wiretapping because of its extremely intrusive qualities, there would undoubtedly have been vigorous debate if anyone thought the force resolution would roll back FISA. In fact, the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution.