US Diary: here's the best piece on the latest Bush scandal: illegal spying on US citizens

The Most Important Question of All in Bush's Domestic Spying Scandal -- by David Sirota

In the last 72 hours since the revelation that President Bush ordered illegal domestic surveillance operations , we have seen how the Republican spin machine has mastered the art of turning any and all controversies into questions of national security. You know the drill: those who are criticizing Bush's orders are billed as weak, soft on national security, or against domestic efforts to stop terrorism.

Meanwhile, Bush is portrayed as the tough fighter of terrorism, willing to make the tough choices to defend America's national security. In short, his crimes are portrayed as badges of honor.

There's just one problem: this isn't a question of whether America supports domestic surveillance operations against terrorists or not. This is a question of whether America supports those operations without requiring a warrant.

The truth is, domestic surveillance operations happen all the time. They are such a part of our culture, they are a regular topic of television shows and movies (think Serpico or Stakeout ). But they are also governed by the U.S. Constitution's 4th Amendment, which explicitly protects citizens against "unreasonable search and seizures" and requires the executive branch to obtain a warrant from the objective judiciary branch in order to do surveillance operations.

So the question reporters should be asking the White House isn't why the president thinks there should be domestic efforts to track and stop terrorists. The vast majority of Americans think that. The question reporters should be asking is "Why did the President order domestic surveillance operations without obtaining constitutionally-required warrants?" That is behavior that most Americans who believe in the Constitution likely do not support at all.

Make no mistake about it - this is an especially poignant question considering that, under the Patriot Act's weakened standards, the government can now circumvent the traditional (and more rigorous) judicial system and obtain a warrant directly from a Foreign Intelligence Surveillance Act (FISA) court. Remember, this is a court almost completely skewed in favor of the government. As Slate Magazine correctly noted, getting a warrant from that judge requires "no need for evidence or probable cause" and the judge has almost no authority to reject the government's request for a warrant, unless the government's request are extraordinarily outlandish. It is why, as Josh Marshall reports , the government's own data shows that "in a quarter century, the FISA Court has rejected four government applications for warrants." It is also why Members of Congress of both parties have tried to repeal the Patriot Act sections that allow the administration to use FISA warrants for domestic surveillance.

In his defense, the President has tried to deflect attention by repeatedly saying he needed to order these operations to protect Americans. Fine – but it still doesn't answer the real question. If the surveillance operations he ordered were so crucial and so important to protecting our country, how come he didn't get a warrant? Surely something so critical to our security would have easily elicited a warrant from a FISA court already inclined to issue warrants in the first place, right?

And that gets us right back to the most important question: why would the President deliberately circumvent a court that was already wholly inclined to grant him domestic surveillance warrants? The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so "unreasonable" that even a FISA court would not have granted them.

This is no conspiracy theory - all the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the cold, hard facts that we already know.

Two years ago, the New York Times reported that the administration is using the FBI to "collect extensive information on the tactics, training and organization of antiwar demonstrators." Then, just a few months ago, the Times reported that the FBI "has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." And just this past week, NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of anti-war peace groups. The report noted that the administration had monitored 1,500 different events (aka. anti-war protests) in just a 10-month period.

These are exactly the kind of surveillance operations even a government-tilted FISA court would reject, and it raises yet more questions: Are these anti-war peace groups the targets of Bush's warrantless, illegal surveillance operations? Who else has the President been targeting? Has it been his partisan political enemies a la Richard Nixon? Or has he been invading the privacy of unsuspecting citizens in broad sweeps with no probable cause at all?

The answers to these questions will get us away from the silly and partisan "strong on national security" vs. "weak on national security" and get us to the real questions at hand. This controversy has to do with whether America believes in the Constitution's separation of powers between an executive and a judicial branch – the separation that quite literally differentiates our form of government from any old dictatorship, where when the monarch snaps his fingers, the secret police immediately target the unsuspecting citizen. That's about as un-American as you get – and that's why we need to know whether those who hold high office in this country think they can turn our democracy into their autocracy.

(David Sirota is a writer and veteran political strategist. He just completed a book for Random House's Crown Publishers entitled " Hostile Takeover " - it will be released in the Spring of 2006. Sirota is currently the co-chairperson of the Progressive Legislative Action Network ( PLAN ). - a position he took after finishing a two-year stint at the Center for American Progress . Sirota is currently a Senior Editor at In These Times magazine, and a regular contributor to The Nation magazine. He is also a twice-weekly guest on the Al Franken Show.)

AND here's Katrina Vanden Heuvel on the same thing, but calling attention to how obsequious our press is when it sits on dynamite stories (and of course, I can't help but mention that Katrina is to my mind the most bonkable woman in media):

Spying and Lying -- by Katrina vanden Heuvel

"This shocking revelation ought to send a chill down the spine of every American."
-- Senator Russell Feingold, December 17, 2005

As reported by the New York Times on Friday, "Months after the September 11 attacks, President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying."

A senior intelligence officer says Bush personally and repeatedly gave the NSA permission for these taps--more than three dozen times since October 2001. Each time, the White House counsel and the Attorney General--whose job it is to guard and defend our civil liberties and freedoms--certified the lawfulness of the program. (It is useful here to note "The Yoo Factor": The domestic spying program was justified by a "classified legal opinion" written by former Justice Department official John Yoo, the same official who wrote a memo arguing that interrogation techniques only constitute torture if they are "equivalent in intensity to...organ failure, impairment of bodily function or even death.")

Illegally spying on Americans is chilling--even for this Administration. Moreover, as Kate Martin, director of the Center for National Security Studies , told the Times , "the secret order may amount to the president authorizing criminal activity." Some officials at the NSA agree. According to the Times , "Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation." Others were "worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected President."

It's always a fight to find out what the government doesn't want us to know, and this Administration and its footsoldiers have used every means available to undermine journalists' ability to exercise their First Amendment function of holding power accountable. But compounding the Administration's double-dealing, the media has been largely complicit in the face of White House mendacity. David Sirota puts it more bluntly in a recent entry from his blog: "We are watching the media being used as a tool of state power in overriding the very laws that are supposed to confine state power and protect American citizens."

Consider this: the New York Times says it "delayed publication" of the NSA spying story for a year. The paper says it acceded to White House arguments that publishing the article "could jeopardize continuing investigations and alert would-be-terrorists that they might be under scrutiny."

Despite Administration demands though, it was reported in yesterday's Washington Post that the decision by Times editor Bill Keller to withhold the article caused friction within the Times ' Washington bureau, according to people close to the paper. Some reporters and editors in New York and in the paper's DC bureau had apparently pushed for earlier publication. In an explanatory statement, Keller issued the excuse that, "Officials also assured senior editors of the Times that a variety of legal checks had been imposed that satisfied everyone involved that the program raised no legal questions." This from a paper, which as First Amendment lawyer Martin Garbus pointed out in a letter to editor "rejected similar arguments when it courageously pub;ished the Pentagon Papers over the government's false objections that it would endanger our foreign policy as well as the lives of individuals." The Times , Garbus went on to argue, "owes its readers more. The Bush Administration's record for truthfulness is not such that one should rely on its often meaningless and vague assertions."

Readers and citizens deserve to know why the New York Times capitulated to the White House's request? It is true that Friday's revelations of this previously unknown, illegal domestic spying program helped stop the Patriot Act reauthorization. But what if the Times had published its story before the election? And what other stories have been held up due to Adminsitration cajoling, pressure, threats and intimidation?

The question of how this Administration threatens the workings of a free press, a cornerstone of democracy, remains a central one. Every week brings new evidence of White House attempts to delegitimize the press's role as a watchdog of government abuse, an effective counter to virtually unchecked executive power.

Last month, for example, the Washington Post published Dana Priest's extraordinary report about the CIA's network of prisons in Eastern Europe for suspected terrorists. Priest's reporting helped push passage of a ban on the metastasizing use of torture. But, as with the New York Times , the Post acknowledged that it had acceded to government requests to withhold the names of the countries in which the black site prisons exist.

How many other cases are there of news outlets choosing to honor government requests for secrecy over the journalistic duty of informing the public about government abuse and wrongdoing?

Never has the need for an independent press been greater. Never has the need to know what is being done in our name been greater. As Bill Moyers said in an important speech delivered on the 20th anniversary of the National Security Archive , a dedicated band of truth-tellers, "...There has been nothing in our time like the Bush Administration's obsession with secrecy." Moyers added. "It's an old story: the greater the secrecy, the deeper the corruption."

Federation of American Scientists secrecy specialist Steven Aftergood bluntly says, "an even more aggressive form of government information control has gone unenumerated and often unrecognized in the Bush era, as government agencies have restricted access to unclassified information in libraries, archives, websites and official databases." This practice, Aftergood adds, "also accords neatly with the Bush Administration's preference for unchecked executive authority."

"Information is the oxygen of democracy," Aftergood rightly insists. This Administration is trying to cut off the supply. Journalists and media organizations must find a way to restore their role as effective watchdogs, as checks on an executive run amok.