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Name-Calling by the White House?

Lisa Graves,
Legislative Counsel
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January 6, 2006

What a surprise. You just know this means we are making progress!

McClellan was trying to spin the president’s 2004 statement the same way Bush himself did over the weekend, claiming he was referring exclusively to “roving” wiretaps, which allow the surveillance to follow the target from phone to phone.

The same with the claims by Bush and Gonzales that they were discussing the Patriot Act, not the Foreign Intelligence Surveillance Act (FISA), when the Patriot Act amended FISA at Bush’s request in many ways but one: It did not repeal the requirement that a court review all wiretaps of US persons on these shores in all foreign intelligence investigations.

The same with the assertions by the administration and its allies that our laws are only about prosecuting crimes and don’t apply to preventing terrorism, despite the very title of the Patriot Act, “Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” Despite the very language of FISA, which provides the “exclusive” mechanism for authorizing electronic surveillance regarding “terrorism.”

To put it bluntly, their “spin” is just one more link in the chain of lies they have forged.

The President’s 2004 statement, like so many of the other statements he’s made to the American people about terrorism, talked about “chasing down terrorists” not just those who used several phones to contact their associates, not just roving wiretaps.

Second, even if he was referring only to roving wiretaps, the statement is still likely untrue. It seems utterly implausible that an administration intent on letting the NSA tap into our telecommunications infrastructure to capture all calls to or from anyone in the US for some set of international calls would suddenly stop to get court approval for a roving wiretap if a different phone number popped up on the computer tracking these communications.

Their rationale is that it’s too inefficient to get court approval (even though Congress amended FISA in 2001 to allow a 72-hour delay, expanding the initial 24 -hour delay allowed for emergencies) and yet folks are expected to believe that for this super secret electronic surveillance of anyone they choose the administration would just stop its monitoring if more than one phone is used, even when they obviously don’t feel obligated to follow these very laws in the first place.

What could be more “roving” than the will to monitor anyone in the country no matter what phones or internet accounts they may be using? When Congress wrote FISA in response to the revelations of President Nixon’s electronic surveillance (also in the name of national security), they knew for certain that without a judicial check on such powers there is no way to ensure that a president, or his men, are focusing on actual threats versus political “threats,” innocent Americans who have done nothing wrong and who pose no threat to our nation but who may simply disagree with the president or his party. Because US citizens have rights, even if the President doesn’t honor them.

It’s funny. The ACLU’s opponents try to paint us as on the margins, but with the former White House Counsel John Dean making similar points to ours, and with reports that in 2002 even high officials at the Justice Department balked at the NSA end-run around the law, the president and his advisors seem to be the ones out of step with the law.

But that’s far too generous. They appear to have willfully violated the laws they promised to faithfully execute. And that’s not funny. It’s a constitutional crisis. Or perhaps an unconstitutional crisis.

We are either a nation governed by the rule of law or the will of men, and if the latter is permitted to take hold our constitutional democracy and our cherished liberties simply cannot survive, except in name only.