And Yet... (16 page)

In a way, I am already flirting with lawbreaking by ventilating these questions. Since we filed our suit, the Bush administration has issued a “white paper,” and has agreed to hearings on Capitol Hill about the propriety of using the NSA against Americans. But this was not at all the first response to the revelation of the surveillance program. It was angrily announced by the White House that whoever disclosed it had violated the law and was giving aid and comfort to the enemy. A criminal inquiry has been set in motion to uncover the source of the leak. Meanwhile, in Britain, the Crown Prosecution wants to delay proceedings against Keogh and O'Connor while it seeks endorsement of a secret venue from Blair's foreign secretary, Jack Straw. (British law features an Official Secrets Act, allowing the government to decide that even public information is secret, which in the US would be a violation of the First Amendment. Another reason, it occurred to me, why I had changed countries to begin with.) In other words, do bear
in mind, dear reader, that you were not even supposed to know about these arguments in the first place!

Let us be scrupulous and put the opposite case. Things have changed since 1978, when FISA became law. The distinction between “overseas” and “at home” has been eroded by transnational jihadist groups. The forces of law and order must be able to move very swiftly. The Justice Department white paper argues that Congress
did
permit the president to order warrantless surveillance when after 9/11 it granted him the Authorization for Use of Military Force (AUMF). In ruling on the Yaser Esam Hamdi case, which was that of an “enemy combatant,” the Supreme Court found that the AUMF included detention in “narrow circumstances” as a “fundamental incident of waging war.” The Justice Department now wants to say that electronic surveillance is also a “fundamental incident.” Oh, and Abraham Lincoln suspended habeas corpus during the Civil War.

Well, the fact remains that the AUMF doesn't say a word about surveillance. And is it not the Republican Party which makes a fetish of “original intent,” and opposes the discovery of hidden or novel interpretations of existing laws? Furthermore, Congress amended FISA
after
it passed the AUMF. Thus, it can't be argued that Congress intended that the AUMF supersede or override FISA. It can't be argued even if, as its critics say when they are finally forced to discuss the matter, FISA is itself unconstitutional. If Bush feels that the act unbalances the separation of powers by granting too much authority to Congress, he must ask for it to be repealed or amended, or request that the Supreme Court strike it down. Meanwhile,
it is the law of the land
and he is bound by oath to uphold and obey it. And if the Supreme Court is to be cited, then remember what it said in June 2004, when the administration wanted to hold “enemy combatants” without a hearing. It ruled that “a state of war is not a blank check for the President.” In dreams begin responsibilities, and in wars begin the temptation for the rulers to arrogate extraordinary powers to themselves. Bush once appointed an attorney general, John Ashcroft, who knew so little about the United States Constitution that he
announced that, in America, “we have no king but Jesus.” That moronic statement was exactly two words too long.

As for the Hamdi case, involving an actual combatant and the “fundamental incident of waging war,” if warrantless electronic spying on Americans is now to be defined as such a fundamental incident, then it is difficult if not impossible to say what could
not
be. Warrantless searches of offices and homes? Prior censorship of the press? This is where the Lincoln analogy becomes more relevant. Honest Abe did try unilaterally to suspend the writ of habeas corpus. But the chief justice ruled that only Congress could suspend habeas corpus, and Lincoln was forced to submit the matter to Capitol Hill. I have never heard it argued that this repressive measure actually shortened the war or hastened the Emancipation Proclamation, but it may have had the psychological effect of showing that the Union would use any weapon at its disposal. The thing to keep your eye on is this: we have already been “at war” with our nonstate enemy for as long as the Civil War went on. We are endlessly told it will be a lengthy struggle. All the more important, then, that we know what our rights and responsibilities are. The administration tries to dissolve this thought by saying, in effect, “It's an emergency. Be afraid. Trust us.” What sinister poppycock. Our intelligence “community,” with its multibillion-dollar secret budget, left us under open skies on 9/11. The only born-and-raised American who had infiltrated the Taliban was John Walker Lindh of Marin County. George Tenet's reaction to hearing of the Twin Towers in conflagration was to say that he wondered if it had anything to do with that guy in the flight-training school in Minnesota. For this, Bush gave him a Presidential Medal of Freedom. When the CIA wasn't generating junk intelligence over Iraq, it was leaking hostile propaganda to discredit the whole idea of “regime change” in that country. These people are not even accountable to Bush: when he “authorized” the warrantless surveillance in late 2001 he found that the NSA had already started doing it without anyone's permission. The FBI, on which tons of the resulting raw material was dumped, has stated that it was mostly useless and time wasting. It also must say something if
an organization whose headquarters building still bears the name of J. Edgar Hoover (who wiretapped Martin Luther King Jr. and tried to scare him into committing suicide) has asked the question: Is this even legal? To this and other concerns, General Michael Hayden, former director of the NSA, has blandly responded, “I can say unequivocally that we have got information through this program that would not otherwise have been available.” Well, presumably. That could also be said if we all had to empty our BlackBerrys into his capacious lap.

If you get yourself involved in a civil liberty lawsuit, you will invariably find that you have teamed up with people you don't like. I became a supporter of the ACLU three decades ago, when it lost a good chunk of its membership by defending the First Amendment right of the American Nazi Party to hold a parade in the Jewish suburb of Skokie, Illinois. I told Anthony Romero that he could sign me up for the suit but that I was curious to know who the other plaintiffs might be. The National Association of Criminal Defense Lawyers: fine. Members of this group complain that warrantless eavesdropping destroys attorney-client privilege and makes it almost impossible to represent defendants in far-off locations without flying to see them in person each time. The Council on American-Islamic Relations: yuck. These people produce rationalizations for Muslim fundamentalism and were the advocates for the demented crooner Yusuf Islam (formerly Cat Stevens), who has incited the murder of Salman Rushdie. Still, how mad and pathetic of Homeland Security to divert a whole transatlantic flight just because the crooner was on board. Professors Larry Diamond and Barnett Rubin, of Stanford and of New York University, respectively: good company to be in. Diamond was a member of the transitional authority in Iraq, before he quit in disillusionment, and Rubin remains an invaluable adviser to the United Nations and the government in Afghanistan. These two men have done more to fight the foe than George Tenet ever did, but they now find that old friends and contacts are reluctant to speak freely on the phone or in e-mail. This is important to me too, and to you, because though my own contribution has been slight, it is reporters like John Burns
and Peter Bergen who have come up with far more valuable advance intelligence about al-Qaeda than the CIA or NSA ever has. Put a chilling effect on the investigative work of men like that and you endanger national security. At our press conference, on January 17, the three-hundredth birthday of Benjamin Franklin, I said that this was a sad but appropriate way to commemorate the man who (a) was the presiding spirit at the Constitutional Convention and (b) elucidated the emancipating power of electricity.

Another distinguished co-plaintiff is James Bamford, whose books on the NSA,
The Puzzle Palace
and
Body of Secrets
, are the main public resource for knowledge of a gigantic agency which for a long time was not even known to exist. Thanks to Bamford and others, we now know that the NSA was used to spy on American civilians throughout the Vietnam War, in order to try to prove that the antiwar and civil-rights movements were being manipulated by foreign powers. Black Panthers and Quakers were targeted without distinction, and the first writer to touch upon the fact—David Kahn, author of
The Codebreakers
—was himself placed under an extensive watch. It was this wholesale abuse of power that led to the Senate hearings convened by Senator Frank Church, of Idaho, that contributed to the proposed impeachment of Richard Nixon, and that led to the passage of FISA in the first place. The federal court in which we have filed our suit—in the Eastern District of Michigan—is the court that first held in 1972 that warrantless wiretapping of Americans for national-security purposes was unconstitutional. This ruling against Nixon was later upheld by the Supreme Court. One wonders if a Bush-dominated Court will do the same, but when my neoconservative friends complain about my undermining of the “wartime president,” I have my answer ready: give this power or this right to any one president and you give it, indefinitely and unaccountably, to them all. The surveillance spreads like weeds, and there is no way to know if it is of you, or to get yourself taken off the watch list. Apparently even John Ashcroft could see this elementary point: I've heard from a friend of mine that he was opposed to a national ID card because he didn't
want a future President Clinton to have that much power. In all the recent arguments over the Patriot Act and the “national-security state,” one has often seen senior liberal Democrats take a powder, or join enthusiastically in the aggrandizement of police power (as they did when Bill Clinton rammed through the panicky Antiterrorism and Effective Death Penalty Act of 1996 after the Oklahoma City atrocity), whereas certain prominent conservatives, such as Grover Norquist and former congressman Bob Barr, have been consistently libertarian. As I was getting ready to sign on for the ACLU suit, I had dinner with both of those gentlemen in the interval of a conference of the National Rifle Association. Well, Bob Barr now speaks on tour for the ACLU as well, so if the fans of the Second Amendment can be mobilized to defend the First and Fourth ones, that's absolutely fine by me.

And what of the War on Terror as it applies to Al Jazeera? Stopped by a
Daily Mirror
reporter outside a Virginia church on January 8, Colin Powell (who accompanied Bush on April 16, 2004) said, “You're asking me about a two-year-old meeting that I don't remember.” (When contacted by
Vanity Fair
, Powell responded, “My quote does not confirm that I was at the meeting where such a thing may have been discussed. I was at the Blair visit on 16 April, but not necessarily [at] every conversation they had that day. I don't have memcons to recover all this, but I never took seriously any such idea nor did the president.”) This falls some way short of a strong denial. One might think that such a conversation would either (a) stick in the mind if it had occurred or (b) appear so unimaginable that it could be roundly and affirmatively said not to have happened at all. The first response to the Freedom of Information Act request, on 10 Downing Street writing paper, confirmed that the Cabinet Office “holds information which is relevant to your request,” concerning “memos or notes that record President Bush's discussions with the prime minister about the bombing of the Al-Jazeera television station in Qatar.” It then goes on to say that disclosure of the said information “would, or would be likely to, prejudice relations between the United Kingdom and any
other state.” The Cabinet Office has the right under law to refuse to discuss the matter at all, on grounds of national security, so it is peculiar that it should implicitly confirm the story in a letter. And, of course, if there's nothing to it, or if the president was only making a joke in very poor taste and the transcribers misunderstood, then we'll all climb down. But in that case why are two British citizens facing a trial, which the government wants to conduct in camera?

When I wanted a picture to illustrate this article, I went with a photographer to the turnoff in Virginia where a large public sign points traffic to the “George Bush Center for Intelligence: CIA.” We managed to take a few shots before six police cars turned up, and large men kept their hands on their holsters while ordering us to keep our hands in plain sight. It was only with difficulty that we persuaded them they had no right to confiscate the film. We were on public land, on the Potomac Heritage Trail, under the blue skies of America and protected by the great roof of the Constitution, and were next to a sign which millions of motorists pass every year. And what was going unwatched while six carloads of troopers wasted taxpayer money in this way? In my experience, countries where undisguised photographers attract police attention are countries where the citizen is the property of the state. The duty of a true republican is to resist the banana republic, and perhaps some bananas Republicans, as well as bananas Democrats, so that the Bill of Rights survives this war as it has survived the previous ones. When Attorney General Alberto Gonzales made an appearance at Georgetown University Law Center on January 24, a group of students got up to unfurl a banner which read, “Those who would sacrifice liberty for security deserve neither.” And, I might add, will get neither. The words are taken from Benjamin Franklin.

(
Vanity Fair
, April 2006)