18 December 2005

Land That I Love

A.D. Freudenheim, The Editor

It is now official: the American system of checks and balances is broken, in three different places.

Within the Executive branch, the story released by The New York Times on Friday, 15 December1 details the first break in the system. According to the paper, President Bush has authorized – and re-authorized, repeatedly – the National Security Agency (NSA) to conduct wiretaps on American citizens without the required, court-provided warrants. Since his election in 2000, President Bush has sought to increase the power and secrecy of the Executive office at ever turn. In almost every case, the American people continue to suffer as a result. Bush has signed “executive orders” prohibiting the release of presidential files for decades, and thus imposing a Soviet-like secrecy upon our understanding of how our own government functions. Bush and his minions have sought to provide a legal rationale for torture. And the President has supported and sustained the creation of a series of legal Catch-22s for anyone who feels wrongly accused: in some instances, the government prosecutor can legally neither-confirm or deny the existence of the very law under which someone has been charged.

For years, Americans suffered through the “Palmer Raids” of the marauding attorney general A. Mitchell Palmer. These were followed (without much distance) by the nearly-interminable era of J. Edgar Hoover as head of the Federal Bureau of Investigation (FBI), during whose reign massive files were developed on “critics” of the American government in one form or another. In each case, however, governmental over-reach was followed (belatedly) by firm backtracking, and even by new laws clarifying what actions government agencies were allowed to take against Americans. Now, however, the historical tradition of spying on one’s own citizens has merged with a cynical and naïve presidential belief that only one man is qualified to make decisions about our safety and security, and that is President Bush himself. On the basis of information we cannot review or analyze, and despite a growing record of knowingly-false public statements, we are to trust President Bush. We are being asked to believe that Mr. Bush can and should be allowed to break the law (in this case, the Foreign Services Intelligence Act) when and if he deems it necessary.

If it is not obvious, then let it be stated clearly: this is completely contrary to the principles that underline American Constitutional law. The president is bound by the laws of these United States, as passed by the Congress, and as affirmed into law either by presidential signature or by Congressional vote. Here, there is law in effect, passed by Congress and wholly controlling the activities of the National Security Agency in this regard. In fact, the President – this one, and all others – is not sworn to protect and defend the United States, but rather is sworn to “preserve, protect, and defend the Constitution of the United States.” So, when Mr. Bush says “I authorized the National Security Agency, consistent with U.S. law and the Constitution,” he is, in fact, lying.2 He certainly seems to have authorized the NSA’s actions - but that he did so is not Constitutionally-consistent; rather it is extra-Constitutional and nothing short of a violation of Mr. Bush’ oath of office. Moreover, in basing his actions on his belief that he is sworn to protect the nation, he misplaces the clear and valuable emphasis on how America can best be defended: by upholding the law.


Breaking point number two falls to Congress, for abdicating (and not for the first time under the Bush Administration) responsibility for monitoring whether and how the Executive branch follows the laws passed by the legislature.

At the time of the confirmation hearings for Chief Justice John Roberts, held just a few months ago, one concern expressed most loudly by Senator Arlen Specter, chairman of the Judiciary Committee, was that Mr. Roberts appeared to take Congress’ authority to make laws too lightly. Specifically, Specter mused that in Roberts’ rulings as a judge, he had often seemed too eager to throw out laws passed by Congress, and had not shown proper deference to the Constitutionally-outlined role of the Congress as the law-making body of U.S. government. These concerns were echoed by other Senators as well.

Fast forward. In the Times’ breaking articles on the subject of the NSA’s domestic intelligence operations, the authors note that several members of Congress – including several high-profile Democrats, like Minority Leader Nancy Pelosi and Senator John D. Rockefeller IV – were briefed on the Bush Administration’s plans to circumvent the Foreign Services Intelligence Act and ... did nothing, it seems. Complain, perhaps, but not so that it ever became public. Pelosi, for instance, is quoted thus: “‘The Bush administration considered these briefings to be notification, not a request for approval,’ Ms. Pelosi said. ‘As is my practice whenever I am notified about such intelligence activities, I expressed my strong concerns during these briefings.’”3 In this context, “expressing strong concern” seems to have even less force to it than showing up at a rally or signing an online petition. One wants to ask: Ms. Pelosi, were you previously unaware that the President and his cronies held you and your views to be irrelevant? What could possibly be more serious than an Executive branch that believes it has unhindered powers to spy on Americans? What other action might you have taken, as Minority Leader?

Whether Senator Specter was also informed several years ago that President Bush planned to override U.S. law through an Executive Order remains to be determined. However, at a minimum, one hopes that he will find the same strength of will and purpose needed to follow through on his call for hearings – and that Specter will, once again, assert the rightful role of Congress as the body responsible for creating U.S. law.


Unquestionably, we have The New York Times to thank for the news with which we must now contend. Yet it is difficult not to read the paper’s coverage of this ongoing issue with a tinge – or is that, a twinge – of disappointment. By its own admission, the Times held off publishing the piece for a year: a year during which the Administration continued its activities un-chastened; a year during which the Times was, itself, wrapped-up in a scandal involving truth-telling and the competency of a reporter; and a year that followed the miserable months of 2002 and 2003, during which the paper failed to vet thoroughly information provided by the Bush Administration about weapons of mass destruction in Iraq (information, needless to say, that turned out not to be true).

One wants to congratulate the Times for its diligence, for taking the time to research this story thoroughly and for presenting it when they did – just as the USA Patriot Act is being considered for re-authorization. However, this whole episode, along with the paper’s previous reporting in advance of the Iraq war, represents just another shameful episode in American journalism; it is the third break in our system of checks and balances, of which a free and independent media are the recognized fourth column supporting our national structure. The Times is by no means entirely to blame; bad reporting has been rampant, many journalists and editors also failed to detect the bullshit they were handed about Iraq, and still others neglected to note that some of the “news” they were passing off was effectively just a bought-and-paid-for infomercial on behalf of the Bush Administration. But as the so-called “paper of record” in these United States, one has to ask: you couldn’t have conducted this additional research in less time? You couldn’t have spared the American public an additional 12 months of domestic intelligence work, spying activities you knew to be in violation of U.S. law?


President Bush and his cronies have created and perpetuated a number of aphoristic fallacies that seem to inform their every activity. These are: that trust equals secrecy; that secrecy equals protection; and that protection equals responsibility. The wrong-headedness of these sentiments are now in evidence in a President who, exposed publicly for his illegal spying on his own citizens, sees fit to proclaim that he will continue to pursue such activities again and until he, and he alone, sees fit to stop.

1“Bush Secretly Lifted Some Limits on Spying in U.S. After 9/11, Officials Say,” The New York Times, 15 December 2005

2As quoted by The New York Times, “In Address, Bush Says He Ordered Domestic Spying,” by David Sanger, 18 December 2005.



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