Oversight of Warrantless Wiretapping by Capitulation

By Robert Parry
March 10, 2006

Despite a dip in his opinion polls, George W. Bush’s transformation of the United States into an authoritarian society continues apace, with new “compromises” with Congress actually consolidating his claims to virtually unlimited executive power.

Bush’s latest success came as part of a supposed “concession” to Congress that would grant two new Republican-controlled seven-member subcommittees narrow oversight of Bush’s warrantless wiretapping of Americans.

While “moderate” Republican senators – Mike DeWine of Ohio, Olympia Snowe of Maine, and Chuck Hagel of Nebraska – hailed the plan as a retreat by the White House, the deal actually blesses Bush’s authority to bypass the courts in spying on Americans and imposes on him only a toothless congressional review process.

Indeed, the congressional plan may make matters worse, broadening the permissible scope of Bush’s wiretaps to include Americans deemed to be “working in support of a terrorist group or organization.”

Given Bush’s record of stretching words to his advantage – and his claim that anyone who isn’t “with us” is with the terrorists – the vague concept of “working in support” could open almost any political critic of the Bush administration to surveillance.

Plus, the only check on abuses would be the closed-door oversight work of the seven-member panels, which would only be informed of a warrantless wiretap after it had been in place for 45 days. Republicans also would have four of the seven seats on each subcommittee and any dissent from the minority Democrats would be kept secret.

In other words, the plan would let Bush and his Republican congressional loyalists conduct wiretaps of anyone whose activities might be called supportive of terrorists, while any Democratic critic would be muzzled from saying anything publicly under penalty of law.

Chilling Powers

Under such an arrangement, it would not be difficult to envision the wiretapping of journalists writing critical articles about the abuse of terrorism suspects, or of disarmament experts who disagree with Bush’s claims about some “rogue” state’s weapons of mass destruction, or of a political rival who challenges Bush’s interpretation of his Commander-in-Chief powers.

Indeed, many Bush supporters have lobbed accusations of “treason” against the likes of journalist Seymour Hersh, weapons inspector Scott Ritter and former Vice President Al Gore – because they have presented information that clashes with Bush’s agenda.

Other influential Republicans, such as Sen. Lindsey Graham of South Carolina, have urged Bush to move aggressively against suspected “fifth columnists” inside the United States who supposedly sympathize with the enemy.

Graham also has called on Bush to use high-tech surveillance techniques to “map the battlefield electronically,” which in the Internet Age means going beyond assessing the physical battlefield to examine the political connections among potential enemies so they can be neutralized at a time of crisis.

“Here’s where I think I’m your biggest fan,” Graham told Attorney General Alberto Gonzales during Senate Judiciary Committee hearings on Feb. 6. “During the time of war, the administration has the inherent power, in my opinion, to surveil the enemy and to map the battlefield electronically – not just physical, but to electronically map what the enemy is up to by seizing information and putting that puzzle together.

“And the administration has not only the right, but the duty, in my opinion, to pursue Fifth Column movements,” Graham said. “I stand by this President’s ability, inherent to being Commander in Chief, to find out about Fifth Column movements, and I don’t think you need a warrant to do that.”

Though the Bush administration has denied abusing its four-year-old warrantless wiretapping program, it has been unwilling to give details about the numbers of people swept up in the surveillance or define the precise criteria for who’s wiretapped.

Bush has insisted that the wiretaps are limited to the international communications of people in the United States who have gotten calls from al-Qaeda or its affiliates.

Newspaper investigations, however, indicate the spying is much more extensive than Bush has admitted. The New York Times and the Washington Post have reported that the wiretapping by the National Security Agency has scooped up communications from thousands of innocent Americans. [See Consortiumnews.com’s “Talkin’ Texan Means Lyin’ Big.”]

Investigation Blocked

Congressional Democrats have called for an investigation to ascertain the scope of the warrantless wiretaps before addressing the administration’s assertion that the 1978 Foreign Intelligence Surveillance Act doesn’t give the nation’s spy agencies the flexibility they need.

But congressional Republicans and the White House torpedoed plans for an investigation and instead began drafting legislation that would effectively endorse Bush’s claim to an unfettered right to bypass the Fourth Amendment’s requirement of a court order before a legal search can be conducted.

The new legislation, sponsored by Sen. DeWine, would permit the N.S.A. to intercept international phone calls and e-mails of U.S. residents if the administration saw “probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization.” [NYT, March 9, 2006]

After 45 days, the law would require the Attorney General to take one of three steps: end the wiretap, get a warrant from the secret FISA court, or inform the new oversight panels about the wiretap.

White House spokesman Dana Perino said the administration was willing to give the new seven-member panels information about the wiretaps but that the members would be prohibited from divulging what they learn. [Washington Post, March 9, 2006]

Congressional Democrats have criticized the DeWine plan as insufficient to prevent violations of civil liberties.

Sen. John D. Rockefeller IV of West Virginia, the ranking Democrat on the Senate Intelligence Committee, said Congress first needed to exercise its responsibility to conduct oversight of the Executive Branch.

“It is ‘undersight’ when they tell us what they want us to know,” Rockefeller told the Washington Post. “It’s ‘oversight’ when we know enough to ask our own questions.”

However, with hard-line Republicans like Senate Intelligence Committee Chairman Pat Roberts of Kansas joining with more moderate Republicans like Snowe and Hagel, the Democrats appear to have been out-flanked and out-muscled again.

A similar process occurred in December 2005 when Congress passed legislation outlawing cruel, inhuman and degrading treatment of detainees in U.S. custody. But an amendment, promoted by Graham and co-sponsored by Sen. Carl Levin, D-Mich., limited legal appeals that Guantanamo Bay inmates could make in U.S. courts.

Bush administration lawyers have since gone into federal court, citing the Graham-Levin amendment to prevent Guantanamo detainees from stopping alleged torture. In other words, the anti-torture law is being interpreted as granting Bush the sole right to decide how to interpret its provisions and when to enforce them. [For details, see Consortiumnews.com’s “Bush Flummoxes Kafka, Orwell.”]

The legislation on warrantless wiretaps now promises to be the next White House “concession” that will, in reality, consolidate Bush’s autocratic power in what looks like an inexorable march toward an end of the American democratic Republic.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'