As the Democrats back away from their noisy critique of the NSA wiretapping "scandal" it is instructive to look at what might have motivated them to raise the alarms. Dr. Sanity has an excellent summary of the Democrats climb-down, and places it in a larger context in Democrats Courting A Long Political Drought. She believes that partisan politics is driving the Democrats over a cliff and they certainly offer evidence to support this position on a regular basis. However, from time to time I think it is useful to take a fresh look at their concerns and see if there is anything new to be learned from them. We absolutely need a responsible opposition and the arguments of those who press the Democrats from their base are essential to understand for this very reason.
OpEdNews.com is a news/blog aggregator which offers a wealth of articles and posts for perusal. On February 10, 2006, Bob Burnett offered an interesting article, Bush Eavesdropping - Why do We Care?, as the last of a series:
In December, The New York Times revealed that the Bush Administration, has been eavesdropping on our phone calls, by means of National Security Agency computer systems, without a court order. Although the exact nature of the surveillance is highly classified, it appears that the White House has gone on a massive “fishing trip;” one that invades the privacy of thousands of ordinary Americans. This is the third of three articles about Administration eavesdropping – why this matters.
In the first two articles, which I have not read, Burnett wrote about the use of NSA computers to monitor phone calls and other electronic communications and gave his take on the FISA law. My interest lies in examining his three major reasons for concern over the Bush administration's wiretapping. Burnett starts off quite well in stating the problem:
... American history teaches us that there are three distinct reasons to worry about illegal Federal actions such as warrantless domestic eavesdropping. The first is that they inevitably become political. The second reason is that expanded Presidential power overturns constitutional checks and balances. The final reason is that this surveillance is not a sign of strength, but rather of incompetence.
The history of illegal eavesdropping in the US teaches that it is abusive and something to fear. There is not a brick wall between well-reasoned security operations and sleazy political backstabbing. The history of surveillance operations such as COINTELPRO indicates that for every baddie the Feds tracked, the Ku Klux Klan, they monitored a goodie, Martin Luther King, Jr. Opponents of the regime in power got monitored and, in many cases, harassed.
While Burnett fails to point out that the MLK wiretaps were authorized by a liberal icon, Robert F. Kennedy, that is a relatively minor quibble.
The second reason we should worry is because of the expansion of Presidential power. This may seem like a theoretical concern, but it’s not. .... In the matter of domestic surveillance, Congress indisputably has the authority to set the rules, and has done so--the Federal Intelligence Surveillance Act. This law clearly describes the process that must be followed when eavesdropping on Americans; the courts protect our fourth Amendment rights, which ensures that there must be “probable cause” for the surveillance. The President has simply blown off Congress and the Federal courts—and our rights.
This is not the only instance where President Bush has sought to expand Presidential powers considerably beyond those envisioned by the framers of the Constitution. After Bush took us to war by misleading Congress, and the American people, about the danger posed by Iraq, his Administration rewrote the rulebook about treatment of suspects by condoning torture.
Once you get past the pro forma attributions of malice to Bush ("Bush lied"), this is actually a very reasonable concern.
Finally, there is no evidence that the NSA program of warrantless surveillance has “helped prevent terrorist attacks,” as the President claimed in his State-of-the-Union address. ....
It is worthwhile giving some thought to all these concerns. The first issue that Burnett raises reflects the natural tendency of all organizations, including especially government bureaucracies, to aggrandize power to themselves. During war time, the Executive branch quite naturally accrues more power to itself than the legislative or judicial branches of government. This overlaps with Burnett's second concern, of the expansion of Presidential powers. I think he is right to be concerned about both these areas. Many on the right believe that the Clintons abused their power during his presidency (the FBI files, using the IRS against their opponents) while many on the left still recall Nixon's enemies list and his abuses of power; of course Nixon left office in disgrace and Clinton was impeached precisely because they abused the powers of the office, so perhaps this offers reason fro comfort rather than concern. Burnett then ends with these points:
Americans are right to be concerned about the threat of terrorism. But the answer is not a vast, clandestine surveillance operation that threatens the privacy of every American. The answer lies in competence, in a well-thought-out program of homeland security.
Sadly, competence is not something that we can expect from this Administration, which is more interested in increasing its own power than it is in protecting America.
As with several of his points, this is difficult to refute, though I would suggest it is irrelevant to he question of the NSA wiretaps. If this is a dangerous program that threatens to damage my civil liberties, I would just as soon it be administered by an incompetent administration than a competent one. Ultimately, whether or not the Bush administration has been competent in protecting us is not answerable with our current data. It is quite possible (perhaps likely) that terror attack shave been thwarted by the NSA program but if so, that very success will lead people to suggest the program is unnecessary.
SO where does Burnett leave us in the argument. He clearly believes Bush is dangerous and incompetent. I would suggest that only the first part of his argument is worth discussion.
[Though, if the Democrats were smart, they would keep hammering away at the incompetence of the Bush administration; with all the assistance they can count on from the MSM, they would have a formidable argument. I would add that the assistance of the MSM does not even depend on bias; it depends more on the tendency of the MSM to see things through a simplistic template which does a grave disservice to the complexity of situations like Iraq and Katrina.]
The crux of Burnett's argument then becomes that the NSA program in the hands of unscrupulous politicians could be used to harm those deemed to be enemies of the administration. This is indisputably a danger of any powerful secret program. I would point out that there are two very powerful arguments against this point of view.
First, at the moment, when the President of Iran is publicly proclaiming his fondest desire to kill Americans and Israelis, and wile various nefarious groups, including but not limited to al Qaeda, do the same, the evidence that there are people who want to kill innocent Americans is incontrovertible. At the moment, I see this as a far greater danger than the NSA program which has still not been shown to have harmed any innocent Americans.
Secondly, I would suggest a thought experiment (as I am wont to do). Consider a truly outrageous abuse of the NSA program. An American anti-war protester is monitored despite no evidence of contact with terrorists outside of the United States. The protester, lets call her Cindy S., is arrested and charged, based on the NSA wiretaps, with conspiracy to harm the United States. Is there any doubt that if this were exposed in the pages of the New York Times (as opposed to simply exposing the existence of the secret program) the outcry would be extreme, and across the political spectrum? Further, is there any doubt that this would be exposed? To believe that this kind of abuse could take place and be unremarked is the height of paranoia. There has been no evidence that anything of the sort has occurred despite a torrent of leaks from within the Washington bureaucracy and the existence of the NSA program for a great many years.
At this point, the dangers of the NSA program remain theoretical, while the danger of Islamic fascism remains all too real and the major argument of those who oppose the program is that Bush, and by extension, hundreds, perhaps thousands of other government officials, Democrats and Republicans alike, who all have access to the phone numbers of the editors of the New York Times and Washington Post, and who have pledged to protect Americans, are untrustworthy. This is an argument that does not hold water.
Updates:
AJ Strata consistently has some of the best information about the entire NSA situation; his latest is Democrats In Full Retreat On NSA.
Stop The ACLU has a nice compendium from around the blogosphere on the issue at Are Democrats Retreating on the NSA Issue?
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