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What Hath Cheney Wrought, Part I


Photo: Ron Edmonds/Associated Press, from the New York Times

On August 4, under pressure to take action before leaving Washington for the summer recess, Congress voted to approve a measure that effectively legalizes, for the next six months, many of the illegal and unconstitutional acts of surveillance that the Bush adminstration have been involved in for years, even without Congressional approval. The administration still refuses to discuss the details of these programs with more than a handful of Congressional leaders, but that didn’t stop them from asking Congress for a blank-check endorsement.

The capitulation of the Democratic-led Congress was perhaps best chronicled by Washington Post columnist E.J. Dionne in his article “Why the Democrats Caved.” It was particularly disillusioning for many of us because it showed that even with new Congressional leadership, the outcome wasn’t a lot different from September 2006, when a Republican-dominated Congress tore up the Fifth Amendment (this year, it was the Fourth Amendment) in their vote to deny habeas corpus appeals to “enemy combatant” detainees.

Two weeks after the vote, an article by James Risen and Eric Lichtblau in the New York Times demonstrated that the situation is even worse than we thought. It seems that Congress, as is usual these days in grave matters of national security, voted without having read the bill carefully, eliminating even more of our Constitutional protections than they first realized. Worse, none of this matters, because the legal maneuvering is just for show. The Bush administration is on record as saying they will do whatever they feel has to be done in this arena, regardless of what Congress has to say about it.

The article states:

    The legislation may grant the government the right to collect a range of information on American citizens inside the United States without warrants, as long as the administration asserts that the spying concerns the monitoring of a person believed to be overseas.

This seems like a lot of loopholes. Under the new law, if the government wants to spy on you without a warrant, all they need to do is “assert” that you may have information that “concerns” someone “believed to be” outside the U.S. You need not be a direct target of the investigation, and even the real target need not be someone like Osama bin Laden living in the wilds of Pakistan—but simply a professor, journalist or NGO worker who is “believed” to be traveling outside the country. As Risen and Lichtblau put it:

    The legislation would allow the government, under certain circumstances, to demand the business records of an American in Chicago without a warrant if it asserts that the search concerns its surveillance of a person who is in Paris, experts said.

In what context will the government “assert” this? Evidently not before a judge, because they aren’t requesting a warrant. So apparently, all the Justice Department needs to do is “assert” to your bank or phone company that your records “concern its surveillance of a person who is in Paris” (such as your uncle on a business trip) and the records will be handed over. There isn’t anything in here about demonstrating that the target of the investigation is, in fact, suspected of a crime.

As everyone knows from high school civics class, bad laws like this one don’t supercede the Constitution. The Fourth Amendment still protects our “houses, papers, and effects” from “unreasonable searches and seizures” and requires that warrants only be issued if “probable cause” can be demonstrated. This law is clearly not legitimate, but now that it’s on the books, it will remain there until the courts get around to blocking it, or the Supreme Court throws it out. So how did we get to this state of affairs? Risen and Lichtblau tell us:

    It is possible that some of the changes were the unintended consequences of the rushed legislative process just before this month’s Congressional recess, rather than a purposeful effort by the administration to enhance its ability to spy on Americans. “We did not cover ourselves in glory,” said one Democratic aide….

On the other hand, maybe there is more going on here.

    Some civil rights advocates said they suspected that the administration made the language of the bill intentionally vague to allow it even broader discretion over wiretapping decisions.

If so, this is hardly the first time the Bush adminstration has pulled a fast one on Congress. But if you thought the Democrats would be more on the alert for this sort of thing than the Republicans used to be, I guess you were wrong. In fairness, most Democrats in both the House and Senate voted against the bill—but the Democratic leaders in both chambers allowed a vote, knowing they would lose. And if that isn’t bad enough, Risen and Lichtblau go on to inform us that the vote was purely symbolic anyway, and a huge waste of time.

    Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation….
    At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so…. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, “is just advisory. The president can still do whatever he wants to do.

This post is part of a series on the neoconservative legacy, that started with “Neoconservative Death Throes” and continued with “Heart of Darkness.” Next up, we’ll revisit the ever-popular saga of Dick Cheney’s conspiracy to launch an attack on Iran.

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