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FREEDOM WATCH
Spy-der Man
BY HARVEY SILVERGLATE
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George W. Bush & Company can do little to this country and its much-beleaguered Constitution that would come as much of a surprise anymore. Yet we admit to some degree of shock over the belated disclosure by the New York Times on December 16 that shortly after 9/11 the president authorized the super-secret National Security Agency (NSA) to monitor Americans’ communications between this country and foreign destinations without a court warrant. Less shockingly, the Times held the story for a year at the administration’s request. Not at all surprisingly, Bush condemned the newspaper for pursuing the story at all, and lacerated the leaking of the secret program as "a shameful act." In the most cynical move of all, however, Bush aired what amounted to a bald-faced lie: when the Times finally blew the president’s cover, he moaned that terrorists and their allies would now realize they were being monitored and that this would disrupt US intelligence gathering. What a bunch of Nixonian baloney. Since the Truman administration created the NSA through the Foreign Intelligence Surveillance Act (FISA), in 1952, the agency has been tasked with monitoring foreign communications and specifically banned from spying on Americans engaged in overseas communications from their home soil. Those restrictions were modified in 1978, but to conduct domestic terrorism-related surveillance, the NSA was required to seek warrants from a top-secret FISA Court. Since its inception, that body has acted more like a kangaroo court than an independent tribunal; out of more than 18,000 warrant requests for phone or e-mail tapping, the court has never ultimately turned one down. (In a few instances the court forced the agency to supply more information, and in one instance a denial was promptly rectified by the FISA appellate court.) So the fact is, Bush had absolutely no reason to flout the law, but he did so anyway. Even worse, when caught he sought to strike fear in the hearts of American citizens by claiming that terrorists now know they are being tapped, and to intimidate the press by calling for a leak investigation for traitorous conduct. The NSA has been around for 54 years and has been permitted to conduct unbridled foreign surveillance for the duration; the FISA extended that reach to include Americans, albeit with a readily obtainable warrant. The terrorists would have to be pretty dumb to have learned about electronic tapping by reading last week’s New York Times. And Bush would have to be pretty dumb for thinking we’d swallow such a line.
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