Spies, Lies, Thugs and Torture

Revolution #035, February 19, 2006, posted at revcom.us

On January 6, Attorney General Alberto Gonzales appeared before the Senate Judiciary Committee to justify President Bush’s secret program in which the ultra-secret National Security Agency (NSA) spied on private telephone and internet communications by people in the U.S. without any warrant or court approval.

Bush’s program is illegal. It is an overt violation of the Foreign Intelligence Surveillance Act (known as FISA). FISA makes criminal any electronic surveillance not authorized by statute and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigations) as the "exclusive means by which electronic surveillance may be conducted." A letter to Congress from 14 prominent scholars of constitutional law states, "the program appears on its face to violate federal law."

Bush broke the law even though FISA courts are secret and are notorious for rubber-stamping requests for surveillance. For example, in 2004 the government requested 1,758 wiretaps under FISA. Not a single request was denied. FISA even allows the government to engage in electronic surveillance and get approval after the fact.

What Is Known About Bush’s Secret Program?

Bush's secret spying program was first exposed in a New York Times article by James Risen and Eric Lichtblau on December 16, 2005. According to officials familiar with the program interviewed by the Times, the NSA is monitoring, without any warrant or court approval, the international communications of 500 Americans (in addition to 5,000 to 7,000 persons outside the U.S.) at any time. Since people are constantly being added or dropped from the monitoring, it is likely that the program has targeted thousands of Americans since it began.

But, as Thomas Powers points out in the New York Review of Books, "The actual volume of intercepted calls is almost certainly a very great deal larger, going beyond communications between known, named persons. Modern eavesdropping seldom mirrors the classic wiretap of yesteryear when FBI agents with earphones might record hundreds of hours of a Mafia chief chatting with his underboss in New York's Little Italy. The idea now is to see if anyone on the phone in New York or New Jersey sounds in any way like a Mafia chief. A dinner of linguine with clams in a known Mafia hangout could be enough to warrant a further look. The al-Qaeda phone book numbers were the crack in the door; follow-up targets are simply numbers or e-mail addresses, leading to other numbers and e-mail addresses, all plucked from the torrents of traffic transmitted by the switching systems of the major American telecommunications companies, which daily handle two billion phone calls and perhaps ten times as many e-mail messages."

This explains another aspect of the program, which was revealed by the Times but has not been widely discussed in the media, that the NSA, besides actually eavesdropping on specific conversations, has combed through large volumes of phone and internet traffic in a large data-mining operation. The Times and USA Today have reported that U.S. telecommunications companies have given the NSA "back-door access" to the switches through which flow much of the world’s data and voice communications. And telecommunications companies have assisted in other ways. AT&T, for example, has provided the NSA with a direct hook-up to a database code-named Datona that keeps track of phone numbers on both ends of calls as well as the duration of all land-line calls.

The Regime Strikes Back

Right after the New York Times exposed the NSA spying, Bush lashed back. He claimed that "It was a shameful act" to disclose his illegal spying. And that "The fact that we're discussing this program is helping the enemy."

As we go to press, the New York Times is reporting a "rapidly expanding criminal investigation" aimed at anyone involved in exposing Bush's illegal spying (NYT 2/12/06). And an upcoming article in the right-wing magazine Commentary, which describes itself as a publication for "those who shape public opinion" charges that "What the New York Times has done is nothing less than to compromise the centerpiece of our defensive efforts in the war on terrorism." The Commentary article threatens that the New York Times may be prosecuted for violations of the Espionage Act.

Commenting on the ominous implications of this, civil liberties attorney Glenn Greenwald wrote, "this flamboyant use of the forces of criminal prosecution to threaten whistle-blowers and intimidate journalists are nothing more than the naked tactics of street thugs and authoritarian juntas." (HuffingtonPost.com, 2/12/06)

Why Did Bush Violate the FISA Law?

Since FISA courts have pretty much rubber-stamped any request by the government, why does the Bush regime feel the need to violate the FISA rules? One possible answer is they want to be able to spy on domestic dissent and opposition without even the paper trail involved in the FISA process (see sidebar).

Another possible element in this is that a secret program would allow the Bush government to turn the massive technological spying apparatus of the National Security Agency not just against the people or its foreign enemies, but also against its ruling class counterparts and rivals.

When the Senate was hearing testimony on John Bolton’s appointment as U.S. ambassador to the United Nations, Bolton admitted that on at least ten occasions he requested transcripts of conversations with U.S. officials that were taped by the NSA. Governor Bill Richardson of New Mexico said at the time that he was concerned that domestic calls between himself and Secretary of State Powell were among those recorded. The hearings on this issue were never concluded after Bush approved Bolton’s appointment during a Congressional recess.

Fascist Theory of ‘Unitary Executive’

The Bush administration view of executive power, which they call "the unitary executive," is a radical reinterpretation of the functioning of the U.S. political system—essentially arguing that the executive (the President) can trump Congress or the courts. The division of powers between the three branches of government—the executive, the courts, and Congress—have served as a form through which bourgeois democracy maintains a system of "checks and balances" that prevent one section of the ruling class from getting suppressed by other sections of the class (although political suppression has always been a fact of daily life for the oppressed in U.S. society, and takes extreme forms when the system is threatened).

The Bush administration now feels that such checks and balances are too limiting and wants to concentrate power in the executive branch. Newsweek magazine reported ("Palace Revolt," 2/6/06) that Bush’s legal advisers believe "that the executive branch was pitifully weakened by the backlash from Vietnam and the Watergate scandal. Fearful of investigative reporters and congressional subpoenas, soldiers and spies had become timid—‘risk-adverse’ in bureaucratic jargon…"

These are not just academic questions about how the government is organized. The piece in Newsweek about infighting in the administration over interpretations of the unity executive process described a central product of this process, a memo from (at the time) administration lawyer John Yoo:

"The controversial document, which became famous as the 'torture memo' when it leaked two years later, defined torture so narrowly that, short of maiming or killing a prisoner, interrogators had a free hand. What's more, the memo claimed license for the president to order methods that would be torture by anyone's definition—and to do it wholesale, and not just in specific cases. A very similar Yoo memo in March 2003 was even more expansive, authorizing military interrogators questioning terror suspects to ignore many criminal statutes—as well as the strict interrogation rules traditionally used by the military."

Again, these radical changes in constitutional doctrine have horrific real world results. The government is desperately trying to keep secret more photos and video from Abu Ghraib prison. A judge has ordered them released but the government is appealing that decision. Investigative journalist Seymour Hersh, who has seen some of those photos and videos, says that among them are videos of young Iraqi children being raped in front of their mothers.

The Dean of Yale Law School, Harold Koh, said after analyzing the Executive Branch's claims of these previously unrecognized powers, "If the President has commander-in-chief power to commit torture, he has the power to commit genocide, to sanction slavery, to promote apartheid, to license summary execution."

Urgently Needed: A Real Opposition

Much of the criticism of the program in Congress is over "how" to conduct massive domestic spying, not over whether it should be done. For example, Democratic Senator Charles Schumer of New York said, "like everyone else in this room, I want the President to have the legal tools he needs as we work together to keep our nation safe and free, including wiretapping."

If opposition remains confined to top Democratic politicians or other ruling class figures, then it will go nowhere. Already there are the familiar signs of submission and compromise. "I think there are two things going on," Republican Senator Lindsay Graham of South Carolina was quoted as saying in the February 11 New York Times. "There’s an abandonment of you-broke-the-law rhetoric by the Democrats and a more questioning attitude about what the law should be by the Republicans. And that merges for a very healthy debate." Think about the terms of what Graham is calling a "healthy" debate—it is a "debate" where it becomes accepted norms that the president can break any law with impunity, and where the terms of accepted discourse evolve to a discussion of how best to secretly spy on millions of people in service of an agenda of wars of aggression, lies, and torture.

What is urgently needed is for the millions of people who don’t want the government spying on every aspect of their lives, who reject the whole direction of American society, to step onto the political stage. There is a deadly dynamic at work as each new outrage comes down from the White House. If these outrages are not challenged and defeated, and if a powerful movement is not built to bring down the Bush regime, then this all becomes a new normalcy and another step down a road to fascism.

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