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When questioned about the legality of President Bush s eavesdropping program on May 8, widely respected Admiral Bobby Ray Inman, who was director of the National Security Agency (NSA) when the FISA law was drafted (and later deputy director of the CIA), said:"There clearly was a line in the FISA statutes which says you couldn t do this...There was even an extra sentence put in the bill that said, ˜You can t do anything that is not authorized by this bill.
Inman criticized the decision not to do the appropriate thing and go to Congress to revise the statute, if the administration truly felt that FISA needed amending to deal with issues not anticipated in 1978.
What has escaped notice is that the White House did take soundings in Congress. This has been known since Dec. 19, 2005 when Attorney General Alberto Gonzales was asked at a press conference why the administration did not seek new legislation to enable it to conduct such a program legallyï "why the "backdoor approach? In an unguarded moment Gonzales tied himself in knots trying to have it both ways:
"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the pastï "certain members of Congressï "as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.
Strange. If you believe you already have congressional authorization, why sound out members of Congress on the prospects for obtaining authorization? Besides, deliberations on this issue took place in the immediate post-9/11 atmosphere in which the draconian Patriot Act sailed through Congress. Surely the way would have been clear for any reasonable proposal to amend the already flexible FISA. As James Risen has quipped, "In October 2001 you could have set up guillotines on the public streets of America.
It is hard to escape the conclusion that the eavesdropping program (since dubbed the "Terrorist Surveillance Program ) was of such scope and intrusiveness into our constitutional rights that it stood no chance of being approved even in the immediate post-9/11 atmosphere.
So Who Cares?
Administration leaders keep telling us that the "Terrorist Surveillance Program is necessary to intercept communications between al-Qaeda terrorists and Americans who might be in cahoots with them. Details about the program are denied even to overseers in Congressï "including see-no-evil, neutered watchdog Hoekstra. And as Hoekstra and his colleagues stoke citizen fears with charges that opponents are trying to "disarm America, most Americans have been taken in. How many of your friends have told you, "I don t care if my telephone calls are monitored; I m not talking to al-Qaeda. Do you care if the administration is monitoring the phone calls of Sen. Judiciary Committee Chair Arlen Specter? I keep asking myself why it is that, after initially expressing grave doubts about the legality of the eavesdropping program, Specter now has not only caved in, but has actually drafted legislation that would give the president virtually every authority he seeks.
Lessons of History
The widespread complacency in the United States calls to mind that of the obedient German citizens who acquiesced during an analogous time during the thirties. On February 27, 1933, as Adolf Hitler reached for unchallenged power, the Reichstag building, Germany s parliament, was destroyed in a fire. Hitler took full advantage of this 9/11-like calamity to whip up fear of "terrorists ï "in this case, Communist terroristsï "and to impose legislation curtailing the rights of German citizens. The vast majority of German citizens acquiesced.
In Defying Hitler: A Memoir, Sebastian Haffner provides an eyewitness account of those days in Berlin:
"With sheepish submissiveness the German people accepted that, as a result of the fire, each one of them lost what little personal freedom and dignity was guaranteed by the constitution; as though it followed as a necessary consequence.... more than one [of my colleagues] hinted that they had doubts about the official version; but none of them saw anything out of the ordinary in the fact that, from now on, one s telephone would be tapped, one s letters opened, and one s desk might be broken into. (pp 121-122)
Dà jà vu? At 73, Judge Anna Diggs Taylor is old enough to remember. And she is certainly old enough to have lived through the indignities suffered by Dr. Martin Luther King, Jr. and so many others at the hands of the wire-tapping-happy head of the FBI, J. Edgar Hooverï "who was an inadvertent catalyst for the FISA legislation.
In other words, Judge Taylor has a firm grasp of the burgeoning danger to our liberties in these times and the need for scrupulous adherence to the rule of lawï "a grasp akin to that of the framers of the Constitution. This is a good thing. One can only hope and pray that her colleagues on the bench will display equal integrity and steadfastness.
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