Rubberstamp for police-state measures
The US Senate Select Committee on Intelligence voted Wednesday to block any
investigation into the Bush administration’s illegal domestic spying operation
and instead lend this crime a pseudo-legal cover. The action represents another
major step in scrapping constitutional forms of rule and moving in the direction
of an American police state.
The committee’s vote, following a closed session, split along party lines.
The Republican chairman of the panel, Senator Pat Roberts of Kansas, said that
the decision was taken to “reject confrontation in favor of accommodation.”
He added that, as a result of consultations with White House staff members—from
which Democrats were excluded—a subcommittee would be formed to “conduct
oversight of the terrorist surveillance program,” the name given by the
administration to its secret use of the National Security Agency to conduct
warrantless electronic bugging of American citizens.
The ranking Democrat on the committee, Senator John D. Rockefeller of West
Virginia, said that the vote only demonstrated that, “The committee is,
to put it bluntly, basically under the control of the White House.” In
response to the defeat of his proposal for an investigation of the covert surveillance,
he charged that the Republican majority preferred to “legislate in darkness
and in ignorance.”
Given the immensity of the attack on democratic rights, Rockefeller’s
protest is, in typical fashion for the Democrats, mealy-mouthed and politically
unserious. The leadership of the Democratic Party has shown no indication that
it intends to wage a struggle against either the illegal spying operation—a
gross violation of the US Constitution and civil liberties and a patently impeachable
offense—or its cover-up by the Congress.
The deal worked out with the White House involves the creation of a seven-member
intelligence subcommittee that would be briefed by the administration on its
spying operation and would craft legislation to nominally legalize it. The House
Intelligence Committee, meanwhile, is working on its own proposal to achieve
the same political end.
According to the Washington Post, the proposed Senate legislation, sponsored
by Ohio Republican Senator Mike DeWine, would explicitly authorize the government
to carry out warrantless domestic spying for a period of 45 days “after
which, the government can stop the eavesdropping, seek a warrant, or explain
to Congress why it wants to continue without a warrant.”
These restrictions are meaningless, placing no impediment whatsoever on the
use of police state powers by the White House. In response to the proposals
of the Senate Republicans, the Bush administration made no attempt to conceal
that it views the proposed legislation as nothing more than window dressing
for continuing unrestricted domestic spying.
White House spokesman Scott McClellan told the media Wednesday that the administration
is “committed to working with congressional leaders to further codify
the constitutional and statutory authority that the president already has.”
While the abject capitulation of the Congress to the illegal acts of the administration
is hardly surprising, it is nonetheless, from an historical standpoint, breathtaking.
Last December, it was revealed by the New York Times—after the newspaper
had censored its own story for fully a year at the administration’s request—that
the National Security Agency (NSA) had secretly eavesdropped on thousands of
individuals without first obtaining warrants.
The action was in direct violation of the 1978 Foreign Intelligence Surveillance
Act, which established a secret court to issue warrants for such domestic electronic
surveillance. The court has approved virtually every government application
for a surveillance warrant, rejecting only four out of nearly 19,000 as of the
end of 2004.
Moreover, the law establishing the FISA court allows the government to begin
surveillance without prior notification and receive a retroactive warrant. Congress
lengthened the time period allowed under the law before the surveillance must
be sanctioned by the court from 24 hours to 72 hours as part of the repressive
legislation approved in the aftermath of the September 11, 2001 attacks.
However accommodating the law is to government demands for domestic spying,
it explicitly makes it a criminal offense to carry out any such surveillance
outside its provisions, which it states are the “exclusive means by which
electronic surveillance... may be conducted [emphasis added].”
The Bush administration has brushed aside the law, claiming that the president
is authorized to conduct such warrantless spying under his constitutional authority
as commander in chief and under implicit authority granted him by Congress itself
with its passage of a 2001 resolution authorizing the use of military force
in response to the terrorist attacks of that year. The same rationale is used
to justify the arrest and detention—without charges, legal counsel or
trials—of those, citizens and non-citizens alike, declared by the president
to be “enemy combatants,” and to torture alleged terrorists.
That this rationale—steadfastly defended by the US Justice Department—is
specious is not a debatable issue. The FISA statute explicitly covers wartime
warrantless electronic surveillance, specifying that such action is allowed
only in the first 15 days of a war. In any case, the “global war on terror”
invoked by the Bush administration to justify its illegal actions has never
The administration’s claim that Congress inferred the authorization of
such spying with its authorization of military force—which nowhere mentions
such surveillance—under conditions where a law enacted by Congress explicitly
bars such methods represents a repudiation of all legal restraints on the power
of the presidency.
FISA, it should be recalled, was enacted in the wake of the revelations that
President Richard Nixon had personally and secretly ordered the electronic bugging
of government officials, political opponents and journalists in the name of
national security. The law was supposed to provide protection against a “Big
Brother” style police state by requiring court review of such domestic
One of the central charges brought by Congress in the articles of impeachment
presented against Nixon in 1974 was his abuse of power through the use of intelligence
agencies to carry out secret electronic surveillance against American citizens.
Now, three decades later, the Bush administration has resurrected these practices—an
explicitly impeachable offense—and ridden roughshod over the law passed
to restrict them. And the reaction of the Congress is to amend the law so that
the administration’s covert crime is rendered formally legal. In other
words, Congress offers itself up as the rubber stamp for a police state-in-the-making.
As for the Democrats, their differences with the administration and Congressional
Republicans have not been a matter of defending core constitutional rights or
opposing the alarming growth of dictatorial powers within the US government.
Rather, they too have argued in favor of new legislation to provide a legal
cover for the illegal spying.
Senator Edward Kennedy, the Massachusetts Democrat who helped write the 1978
FISA statute, has stated that his aim is not to halt the covert surveillance
initiated by the administration, but to “get it right” by granting
congressional approval. The main concern raised by Kennedy is that the illegal
character of the spying could jeopardize the prosecution of alleged terrorists
by tainting the evidence.
Numerous other Democrats have made speeches on the floor of Congress declaring
their support for the surveillance, while criticizing the administration’s
handling of the issue. This form of “opposition” bears a remarkable
resemblance to the Democratic leadership’s position on the war in Iraq—criticizing
the way it was launched or how it is being conducted, while supporting its strategic
aims and its continuation.
The vote to close down the investigation into the NSA spying scandal came just
a day after the US House of Representatives voted to renew the USA Patriot Act,
making all but three provisions in this sweeping attack on civil liberties permanent
law. While drafters of the legislation—both Democratic and Republican—claimed
it incorporated new protections of civil liberties, the final version approved
overwhelmingly by both houses did nothing to rein in the authoritarian powers
which the Bush administration has arrogated to itself.
Meanwhile, emboldened by the lack of any genuine opposition within the political
establishment, the administration has launched a full-scale FBI investigation
aimed at identifying and criminally prosecuting those who exposed its crimes
to the public. The Washington Post reported Sunday that FBI agents have interrogated
“dozens of employees at the CIA, the National Security Agency and other
intelligence agencies” in recent weeks in an attempt to uncover the identities
of the whistle-blowers who provided the media with information on the NSA spying
program as well as the CIA’s secret prisons in Eastern Europe.
The report noted that the Republican chairmen of both the House and Senate
intelligence committees are considering legislation that would criminalize unauthorized
leaks of classified information, allowing for the prosecution of both those
who provide the information and those who receive it. The clear aim is to intimidate
the media with the threat to jail anyone who dares expose the government’s
crimes in the future.
The administration and both major political parties invariably invoke the “war
on terror” and the tragic events of September 11, 2001 to justify these
attacks on democratic rights—as well as the war launched on the basis
of lies against Iraq and the occupation of its oil-rich territory. Yet, as with
the latest decision on the NSA spying scandal, every attempt has been made to
prevent any genuine investigation into the events of September 11 and the ample
evidence suggesting that the administration allowed these attacks to take place
in order to provide a pretext for its policies of war and repression.
These policies have their source not in some omnipresent threat of new acts
of terrorism, but rather the class interests of the financial elite that controls
the US government and both major parties. Within this ruling oligarchy of multi-millionaires
and billionaires—whose interests are so at odds with those of working
people—there exists no genuine constituency for the defense of democratic