It is now clear as day, staring us in the face and almost taunting us to do something about it.
Let's start with a very interesting analysis on the front page of today's Washington Post.
Pushing the Limits Of Wartime Powers
By Barton Gellman and Dafna Linzer
Washington Post Staff Writers
Sunday, December 18, 2005; Page A01
In his four-year campaign against al Qaeda, President Bush has turned the U.S. national security apparatus inward to secretly collect information on American citizens on a scale unmatched since the intelligence reforms of the 1970s.
More on the flip...
The president's emphatic defense yesterday of warrantless eavesdropping on U.S. citizens and residents marked the third time in as many months that the White House has been obliged to defend a departure from previous restraints on domestic surveillance. In each case, the Bush administration concealed the program's dimensions or existence from the public and from most members of Congress.
Why does this Administration consistently "conceal the program's dimensions or existence" from both the public and "most members of Congress"?
I'll tell you why. Because the public are the ones being spied on.
Since October, news accounts have disclosed a burgeoning Pentagon campaign for "detecting, identifying and engaging" internal enemies that included a database with information on peace protesters. A debate has roiled over the FBI's use of national security letters to obtain secret access to the personal records of tens of thousands of Americans. And now come revelations of the National Security Agency's interception of telephone calls and e-mails from the United States -- without notice to the federal court that has held jurisdiction over domestic spying since 1978.
Think about that for a second. "tens of thousands of Americans". The FBI is now using "national security letters" like they were going out of style and the Pentagon is "detecting, identifying and engaging internal enemies" right here in the US.
Pardon me, but just what the fuck is the Pentagon doing spying on the very people they are sworn to protect? Of course, the Pentagon claims that the fact they had not deleted the information about people and organizations that were deemed harmless was an "error".
The official said the database included police reports and law enforcement tips in a legitimate domestic security effort, but that it had mistakenly swept up and kept information on people who were not threats to launch terror attacks.
"We held onto things that should have been expunged because they weren't a threat," the official, who asked not to be identified, told Reuters.
Defense Undersecretary for Intelligence Stephen Cambone planned to send a letter to Congress explaining the error and promising to clean up the database and protect the privacy of innocent persons, the official added.
Uh huh. Bullshit. As Atrios likes to say, "It's not a bug, it's a feature."
We all know that the Pentagon, the folks that brought us the TALON ("Threat and Local Observation Notice") program. a program designed to gather "non-validated threat information and security anomalies indicative of possible terrorist pre-attack activity", is a fountain of honesty and all, but I think I'm done with continuing to give them the benefit of the doubt.
So, if at least a few members of Congress were informed of the Administration's new use for the NSA, why didn't anyone raise holy hell about it? It's a good question and one that has been bothering me for days. Former Senator Bob Graham, a man I have known for years and who I trust implicitly in such matters gives us an answer. Quite simply, they were lied to.
Back to the WaPo:
Former senator Bob Graham (D-Fla.), who chaired the Senate intelligence committee and is the only participant thus far to describe the meetings extensively and on the record, said in interviews Friday night and yesterday that he remembers "no discussion about expanding [NSA eavesdropping] to include conversations of U.S. citizens or conversations that originated or ended in the United States" -- and no mention of the president's intent to bypass the Foreign Intelligence Surveillance Court.
"I came out of the room with the full sense that we were dealing with a change in technology but not policy," Graham said, with new opportunities to intercept overseas calls that passed through U.S. switches. He believed eavesdropping would continue to be limited to "calls that initiated outside the United States, had a destination outside the United States but that transferred through a U.S.-based communications system."
Graham said the latest disclosures suggest that the president decided to go "beyond foreign communications to using this as a pretext for listening to U.S. citizens' communications. There was no discussion of anything like that in the meeting with Cheney."
An unnamed "high ranking intelligence official" who "spoke with White House permission but said he was not authorized to be identified by name", then accuses Senator Graham of "misremembering the briefings". If you know anything about Senator Bob, you know that he's probably never "misremembered" a thing in his life.
Before last week, had you ever heard of the The Counterintelligence Field Activity (CIFA)? Me either. There's a reason for that too. It's size and budget are classified. But WaPo tells us that it "has grown to encompass nine directorates and a staff exceeding 1,000" and that it's TALON database "has included "threat reports" of peaceful civilian protests and demonstrations."
A 1,000 folks? There sure must be a whole bunch of "threat reports" to churn out.
But, wait. It gets better.
CIFA has also been empowered with what the military calls "tasking authority" -- the ability to give operational orders -- over Army, Navy and Air Force units whose combined roster of investigators, about 4,000, is nearly as large as the number of FBI special agents assigned to counterterrorist squads. Pentagon officials said this month they had ordered a review of the program after disclosures, in The Post, NBC News and the washingtonpost.com Web log of William M. Arkin, that CIFA compiled information about U.S. citizens engaging in constitutionally protected political activity such as protests against military recruiting.
I'm sure everyone feels safer knowing that there at least 5,000 Pentagon personnel, folks who have sworn under oath to "support and defend the Constitution of the United States", available to keep tabs on Americans who have the temerity to exercise their rights as enumerated in that very same document.
But, this hydra has many heads and you didn't think that the FBI would let the Pentagon kids have all the fun did you?
In November, The Post disclosed an exponentially growing practice of domestic surveillance under the USA Patriot Act, using FBI demands for information known as "national security letters." Created in the 1970s for espionage and terrorism investigations, the letters enabled secret FBI review of the private telephone and financial records of suspected foreign agents. The Bush administration's guidelines after the Patriot Act transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.
The Post reported that the FBI has issued tens of thousands of national security letters, extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans. Most of the U.S. residents and citizens whose records were screened, the FBI acknowledged, were not suspected of wrongdoing.
And now the money shot....
The burgeoning use of national security letters coincided with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed.
The NSA case seals the deal.
As we've seen for the last 48 hours or so, the Administration doesn't have a legal leg to stand on and they are stumbling all over the damn place trying to come up with one. Both the 4th Amendment and the relevant FISA statutes are pretty unambiguous.
* FISA makes it a crime, punishable by up to five years in prison, to conduct electronic surveillance except as provided for by statute. The only defense is for law government agents engaged in official duties conducting "surveillance authorized by and conducted pursuant to a search warrant or court order." [50 U.S.C. § 1809]
- Congress has specifically stated, in statute, that the criminal wiretap statute and FISA "shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." [18 U.S.C. § 2518(f)]
- The target of a FISA wiretap is never given notice that he or she was subject to surveillance, unless the evidence obtained through the electronic surveillance is ultimately used against the target in a criminal trial.
And, as Josh Marshall has noted, the FISA court is hardly stingy with warrants the government wants and the statutes themselves even allow for retroactive applications in times of emergency. There seems to be no reason whatsoever for the Administration to attempt to bypass the FISA court.
Why would the Administration embark on such a risky and obviously illegal course of action? Why would they lie to members of Congress about what they were really up to?
Because what they had in mind wasn't gathering intelligence in the US related to "terrorism". What they were doing wasn't intercepting "foreign communications" originating or ending in the US, as I'm quite confident that we will learn eventually.
What they didn't want the FISA court, the US Congress or the American public to know was they were now using the awesome technological prowess of the NSA to spy on Americans, Americans that they don't trust. They don't trust them because they believe that they are involved in "terrorism" or have Osama been Forgotten's picture on their wall. They don't trust them because they are actively opposed to the policies pursued by the Executive branch.
They wanted to unleash the NSA to further their own political aims and to further insulate themselves from an ever incredulous public. You just know that the "enemies lists" exist and it's just a matter of time before we see them.
A new and improved COINTELPRO has risen from the ashes.
I guess it was predictable that this was gonna happen. I mean if you surround yourselves with a bunch of neo-fascist bootlicking gits from the Nixon era like Cheney, Rumsfeld and Wolfowitz, it was only a matter of time before they would want to re-create their Orwellian glory days.
These are dark and extremely dangerous times. This genie needs to get put back in the bottle and those responsible need to be held to account. This CAN NOT STAND.
It seems pretty fucking obvious to me that this is not, and probably never was, about terrorism. This is about monitoring, intimidating and and squelching constitutionally protected dissent.
Pure and simple.
It seems I'm not the only one who is coming up with the same answers for these questions.
David Sirota has a great piece over at HuffPo.
And that gets us right back to the most important question: why would the President deliberately circumvent a court that was already wholly inclined to grant him domestic surveillance warrants? The answer is obvious, though as yet largely unstated in the mainstream media: because the President was likely ordering surveillance operations that were so outrageous, so unrelated to the War on Terror, and, to put it in Constitutional terms, so "unreasonable" that even a FISA court would not have granted them.
This is no conspiracy theory - all the signs point right to this conclusion. In fact, it would be a conspiracy theory to say otherwise, because it would be ignoring the cold, hard facts that we already know.
Two years ago, the New York Times reported that the administration is using the FBI to "collect extensive information on the tactics, training and organization of antiwar demonstrators." Then, just a few months ago, the Times reported that the FBI "has collected at least 3,500 pages of internal documents in the last several years on a handful of civil rights and antiwar protest groups." And just this past week, NBC News obtained a 400-page Pentagon document outlining the Bush administration's surveillance of anti-war peace groups. The report noted that the administration had monitored 1,500 different events (aka. anti-war protests) in just a 10-month period.
These are exactly the kind of surveillance operations even a government-tilted FISA court would reject, and it raises yet more questions: Are these anti-war peace groups the targets of Bush's warrantless, illegal surveillance operations? Who else has the President been targeting? Has it been his partisan political enemies a la Richard Nixon? Or has he been invading the privacy of unsuspecting citizens in broad sweeps with no probable cause at all?
There just doesn't seem to be any other plausible explanation for bypassing the Title III and FISA routes.