Omnipotence, Omniscience, Spying and the Loss of Liberty

The Bush Administration recently dispatched Attorney General Michael Mukasey and the Director of National Intelligence Mike McConnell to publicly defend its warrantless and illegal surveillance of Americans. However, despite these attempts at justification, this remains unconstitutional and intrusive, and is a clear abandonment of the principles of democratic government.
This isn't a new story. The spying began prior to 9/11 and efforts to justify it on that basis clearly fails based simply on the chronology, if nothing else. As the NY Times reported, "in December 2000, agency officials wrote a transition report to the incoming Bush administration, saying the agency must become a 'powerful, permanent presence' on the commercial communications network, a goal that they acknowledged would raise legal and privacy issues."
McConnell implicitly endorsed this position recently when he wrote in the NY Times, in arguing for a renewal of the Protect America Act, that

"the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found." (By "where the communications are found," read the United States, and note that the phrase "foreign intelligence target" doesn't necessarily exclude American citizens)

Attorney General Mukasey wrote similarly that

"the House of Representatives recently passed a version that would significantly weaken the Protect America Act by, among other things, requiring individual court orders to target people overseas in order to acquire certain types of foreign intelligence information. Similarly, the Senate Judiciary Committee made significant amendments to the Senate Intelligence Committee's bill that would have the collective effect of weakening the government's ability to effectively surveil intelligence targets abroad." (Again, "target people oversees" and "effectively surveil intelligence targets abroad" doesn't necessarily exclude American citizens)

Yet Rep. Rush Holt (D-NJ) wrote (in defense of the House Restore Act Mukasey referred to which reinstated court oversight protection excluded in the Protect America Act) that the legislation:

"provides exactly what the Director of National Intelligence asked for earlier this year: it explicitly states that no court order is required to listen to the conversations of foreigners that happen to pass through the U.S. telecommunications system. It does not grant Constitutional rights to foreign terrorists."

So what, exactly, is the disconnection here? Simply, the administration wants the power--on principle--to engage in warrantless wiretapping of not only foreigners overseas (which it is already legally entitled to do), but potentially on American citizens abroad (and, potentially, at home since communication hubs are located in the US), and do so without legal or congressional oversight. They want, unchecked, the power to turn the United States--a nation of laws--into a lawless state.
McConnell, Mukasey and others want the public to think that the FISA safeguard requiring a warrant makes impossible sucessful monitoring of terrorists' communications. Yet, as Holt says,

"if federal intelligence and law enforcement agencies want to read the email or listen to the phone call of an American citizen, they have to get - except in emergencies - a judge to issue a warrant allowing them do so, as the Fourth Amendment to our Constitution requires. Such a court order would be easy to get if there is cause to believe that the American's communications are important intelligence for the protection of our security. And in such 'emergencies' there would be quick after-the-fact review by the courts. These are not 'unimportant, obscure technical details' - this is the heart of the bill."

There is nothing that prevents intelligence agencies from monitoring terrorist communications. The sole, proper requirement is that the government obtain a court order to monitor communications of people within the United States and American citizens abroad. And even this can be obtained after the fact, in the event of exigent circumstances.

Yet none of the proper, legally and constitutionally required safeguards have been employed by the government. The starkest evidence for this is the complicity of telecommunications companies. Constitutional legal expert Glenn Greenwald has written extensively about this, and telecom immunity from prosecution comprises a significant element of McConnel's and Mukasey's "arguments."
Mukasey, in defending telecom companies' complicity, wrote that pending legal action against them ought to be dismissed if

"the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful."

Not "determined to be lawful" by a court (a necessary branch of government in accordance with our separation of powers) but by the attorney general and the president (for whom he works).

McConnell asserted that:

"those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits. I share the view of the Senate Intelligence Committee, which, after a year of study, concluded that 'without retroactive immunity, the private sector might be unwilling to cooperate with lawful government requests in the future,' and warned that 'the possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our nation.'"

But the issue isn't (and never has been ) cooperation "with lawful government requests." In fact, according to the NY Times,

"N.S.A. [National Security Agency] officials met with the Qwest executives in February 2001 and asked for more access to their phone system for surveillance operations, according to people familiar with the episode. The company declined, expressing concerns that the request was illegal without a court order."

Not only did the request precede the attacks of 9/11 by several months (and right after the Administration took office), but Qwest's legal staff objected to the absence of a court order. Clearly, the company objected not to the request for assistance but that it didn't meet legal safeguards.

The blatant disregard for the Constitution, couched in the language of patriotism, has rendered the United States a lawless place where no one is safe. This isn't mere hyperbole. It's exactly what's being determined right now in Congress. Our Bill of Rights is slowly but determinedly being neutered and our proud history and tradition of the rule of law, for which so many have died defending, is about to be buried by seekers of raw power.
Edward Lazarus, a Constitutional lawyer, observed in 2005 that

"I might even accept, for the purposes of argument, that, in the panicky aftermath of 9/11, it was understandable for the President to act unilaterally to protect against a potential second-wave attack, regardless of constitutional limits.
But . . . there has been copious time for deliberation and, if necessary, Congressional action. In this context, it simply cannot be that the President, acting alone, has the permanent authority he now claims to override a carefully-wrought congressional scheme for fighting terrorism, and enact his own set of secret rules."

Or, as U.S. District Judge Anna Diggs Taylor noted in August 2006, ruling that the NSA surveillance program was unconstitutional, "there are no hereditary Kings in America and no powers not created by the Constitution. So all ’inherent powers’ must derive from that Constitution. The public interest is clear, in this matter. It is the upholding of our Constitution."