When The New York Times revealed that President George Bush had authorized warrantless surveillance of Americans, the Bush administration reacted in its usual manner: attack and then stage a public-relations campaign.
The attack was in the usual jingoistic mode, implying that both the Times and its source, a whistle-blower at the National Security Agency, were providing aid and comfort to the enemy and undermining the war on terror.
That’s garbage, of course. Any terrorist with more than a two-digit IQ knows that the NSA has the means to intercept any electronic communication. Terrorists don’t need to read the Times to figure that out.
The reason it is important for the American people to know is because the president appears to have violated both the law and the Constitution. A recent Zogby poll revealed that 52 percent of Americans think that if this is proven to be true, then the president should be impeached. This is a most serious issue.
It goes to the question, Is the president above the law? The answer, if we wish to maintain our free republic, must be no. Hence, the public-relations campaign, which consists of the president and his minions fanning out to make speeches asserting that what he did was both legal and necessary. The operative word is "asserting." An assertion is not a fact. It is merely a claim. What it all boils down to is, "Trust me." The American people have no way of verifying if, in fact, the surveillance is limited to people actually making contact with actual terrorists.
As to the legality, that’s plain. What the president did was illegal. Some act does not become legal just because some hired lawyers say it is. The act must be measured against both the law and the Constitution; Bush’s act was illegal and unconstitutional.
Some years ago, Congress passed the Foreign Intelligence Surveillance Act. It sets up a special court that can issue warrants authorizing surveillance of Americans. This court has routinely issued the warrants and even gives the government 72 hours in which it can get a warrant after the fact. In other words, if what Bush says about only surveilling people with known ties to terrorists is true, then he would have had no problem getting the warrants.
Gen. Michael Hayden, now deputy director of national intelligence and former director of the National Security Agency, was trotted out before the press to justify this and, frankly, made a fool of himself. When someone raised the issue of probable cause, the general petulantly denied that the Fourth Amendment to the Constitution requires probable cause. Then he said that the standard is reasonable, and added that nobody was more familiar with the Fourth Amendment than the NSA.
Well, he’s dead, flat wrong.
Here’s the text of the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
What the Bush administration is saying is, to hell with the Bill of Rights. We are changing the standard. No probable cause and no oaths or affirmations are needed. All that is needed is if we personally decide that search and seizure is reasonable. By that standard, no police department in the U.S. would need to bother with search warrants.
Sorry, but the Constitution cannot be amended by arrogant public officials who don’t wish to bother with it. The Constitution is the supreme law of the land, and if the American people allow it to be violated at will, then they will deserve the loss of liberty that will surely follow. We do not need to become a dictatorship just to catch terrorists. Nor does a declaration of war (which Bush, by the way, doesn’t have) suspend the Constitution.
Charley Reese [send him mail] has been a journalist for 49 years.
