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This weekend something of tremendous consequence happened. The attitude of the Bush Administration will likely be mirrored by that of the Democratic leadership: this is nothing, tend to your own work, just move along. The media will dish up some more Paris Hilton prolefeed (let’s call it by its proper, Orwellian name). But what happened was very important–another massive sledgehammer blow was taken to the foundations of our democratic institutions. And it was a thoroughly bi-partisan effort.
Here’s what occurred. The Bush Administration sought an amendment of FISA to overcome roadblocks that the FISA court threw in its way. It put its case to Congress in secret and sent its national intelligence czar to negotiate a deal. When he concluded an agreement, Bush rejected it. The White House replied with threats, essentially stating that as soon as another terrorist attack occurs, we will pin the blame on Democrats in Congress because of their failure to amend FISA to give us what we want.
That’s good politics. As usual, the White House was not really interested in compromise. In fact, their conduct demonstrated that they would have much preferred not getting their way; they were in search of a political issue. News of such a ploy might even be enough, with a full-court press from the heretofore pliant media, to reverse our current political doldrums and make people take notice.
But Congress looked Bush’s insatiable quest for power squarely in the eye, unlocked the chicken coop, and said to the fox “here–take anything you want.” The changes that were made were subtle, but arguably they gave the Bush Administration even more than it asked for. And from this point forward, any conversation any American has with a foreigner or a person overseas may be snooped upon, no warrants necessary.
Those who expected the Democrats to stand up to this may have gotten a shock. I wasn’t shocked at all. Many see a Democrat-Republican divide over the rise of the National Surveillance State, but that’s foolish. In Britain, the Labour Party has introduced legislation which arguably did more than even Bush to erode civil liberties (and of course, the Britons had fewer liberties to start with. The American Revolution was about something, after all). What we’re witnessing is another demonstration of Lord Acton’s famous maxim: those who hold power tend to seek to extend it. At this point, Democrats are nearly giddy with the prospects of recapturing the White House and resuming rule with a solid power base in the Executive and the Legislature. And with this prospect, suddenly the specter of intrusive big government seems somehow far more palatable to them, and America’s constitutional system and the rights of the individual citizens are less of a concern.
Now President Bush’s signing statement, released this morning, tells us that the process is still ongoing. You see, whatever ground Congress gives, it’s never enough—there are always demands for more. And what’s at the top of the president’s list?
Immunity. Again. The Bush Administration’s internal analyses line up with those of outside scholars: what Bush and his team have been doing for five years roughly is definitely illegal. Felonious. But as long as Fredo runs the Justice Department, there’s no risk of prosecution. So what happens when he’s gone and a real law enforcement official takes over? The prospect of prosecution of administration actors is hanging heavy. How many pardons can Bush issue in his final days? Thus the president writes,
When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.
It looks like Winston Smith has been busy scribbling, inventing a new past that suits the Leader: “meaningful liability protection to those who are alleged to have assisted our Nation.” Just a quick check of the Bush lexicon: “meaningful liability protection” means that those who committed felonies by violating the FISA statute will be given immunity for their violations if they occurred to help further some Presidential design (i.e., crimes in which the president or others in the White House were the kingpins). And “those who are alleged to have assisted our Nation”? Extra ration coupons to Winston for this one. I’d say they’re talking about their aiders and abettors—that is, phone companies, Internet service providers and others who allowed—in violation of criminal statutes—the installation of blackboxes to monitor the flow of information.
So, the Bush Administration, once again recognizing the criminality that is its fundamental operating principle, is seeking to immunize itself. And conversely, true to the essential character of the police state, it is seeking to criminalize those who have blown the whistle on its criminal conduct.
In the current issue of Newsweek, Michael Isikoff reports on the extraordinary steps that the Administration is taking against a former Department of Justice official suspected by Attorney General Gonzales of having blown the whistle on a consistent pattern of violations of the FISA statute.
The controversy over President Bush’s warrantless surveillance program took another surprise turn last week when a team of FBI agents, armed with a classified search warrant, raided the suburban Washington home of a former Justice Department lawyer. The lawyer, Thomas M. Tamm, previously worked in Justice’s Office of Intelligence Policy and Review (OIPR)—the supersecret unit that oversees surveillance of terrorist and espionage targets. The agents seized Tamm’s desktop computer, two of his children’s laptops, and a cache of personal files. Tamm and his lawyer, Paul Kemp, declined any comment. So did the FBI. But two legal sources who asked not to be identified talking about an ongoing case told NEWSWEEK the raid was related to a Justice criminal probe into who leaked details of the warrantless eavesdropping program to the news media. The raid appears to be the first significant development in the probe since the New York Times reported in December 2005 that Bush had authorized the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. residents without court warrants.
Notice the essential selectivity of this extensive harassment project. We know three individuals high in the system who have disclosed essential aspects of the warrantless surveillance activities:
Don’t expect any investigations or prosecutions to emerge in these cases. A police state uses its secrecy laws as a tool for the persecution or repression of political adversaries, not as a means of preserving secrets or implementing serious policy surrounding national security, and that is exactly what is going on here. I don’t know who leaked the first word of the rise of the National Surveillance State to the New York Times and Washington Post. Whoever did it was most likely shocked at the brazen criminality of what was going on and hoped that by exposing it, an end would be put to it. Which is to say, the leaker’s motives were principled, patriotic, led by concern for the rule of law and about the proliferation of criminal dealings within the Government. Those are not criminal motives, and his or her act was not the act of a criminal, but rather a heroic act of quiet desperation.
The fact that even after these disclosures, the National Surveillance State has continued to feed and grow is alarming evidence of the decay of basic institutions. Today, our civil liberties state is withering away and the National Surveillance State surges without control. Retrenchment will be impossible. Resistance is essential, especially by those within.
There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always— do not forget this, Winston— always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless.
If you want a picture of the future, imagine a boot stamping on a human face—forever.
The boot is descending.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
Hours per day that a death-row inmate in China wears hand and ankle restraints:
A multidisciplinary team detected cardiac arrhythmia in the works of Beethoven.
There was a run on cases of 5.56mm M855 green-tip rifle bullets, after the White House moved to ban their manufacture and sale because they can pierce police armor.
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