Original URL: http://www.theregister.co.uk/2006/11/20/terrorist_monitoring_for_all/

Bushies push NSA wiretap extravaganza

Freedom's just another word for nothing left to hide

By Thomas C Greene

Posted in Media, 20th November 2006 14:13 GMT

Comment True freedom is protecting Americans by letting the NSA monitor their email and phone calls by the millions without a warrant, US Attorney General Alberto Gonzales explained to Air Force Academy cadets in a speech last week.

It's a mistake to regard such Gestapo tactics as compromising freedom, he told the young officers in training. "This [antagonistic] view is shortsighted. Its definition of freedom - one utterly divorced from civic responsibility - is superficial and is itself a grave threat to the liberty and security of the American people".

Only days earlier, vice president Dick Cheney had denounced an August court decision in Michigan that found the NSA wiretap program unconstitutional as "an indefensible act of judicial overreaching".

It should surprise no one that the Bush administration is mounting a PR campaign to sell its illegal mass wiretap program, even though it's hardly a hot news item at the moment (the Michigan decision is being appealed). The sales job is directed toward the lame duck Republican Congress, in hopes of having the domestic spying program legalised after the fact, before Democrats take control of the Hill.

As recently as February 2006, Cheney had sought to put a lid on public debate and news coverage of the illegal operation: "The biggest problem we've got right now, frankly...is all the public discussion about it. I think we have in fact probably done serious damage to our long-term capabilities in this area because it was printed first in the New York Times, and subsequently because there have been succeeding stories about it."

But now he and Gonzales are reviving the debate, because this is the administration's last chance to get the legislation it needs to avoid an embarrassing confrontation with Congress, that will, at a minimum, involve long, tortuous public hearings.

Back in February, Cheney confidently dismissed critics by declaring: "We believe...that we have all the legal authority we need."

But Gonzales has softened this imperious message in light of the public's recent vote of absolutely no confidence. The new spin goes like this: "We believe the president has the authority under the authorisation of military force and the inherent authority of the Constitution to engage in this sort of program, but we want to supplement that authority," Gonzales explained.

Obviously, if one already has "all the legal authority they need", it is quite unnecessary to "supplement" it. So Gonzales is really saying that the administration is aware that it has acted illegally and needs a friendly Congress to legitimise the spy program retroactively.

This could prove quite interesting, as there is some doubt that Congress actually can legitimise the spy program. So even if there is to be legislation from the lame duck session, it will almost certainly be challenged on constitutional grounds before the US Supreme Court.

Ultimately, it comes down to the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Now, over the years, the Supreme Court has gradually made a mockery of this, prompting Justice William Brennan in 1984 (an interesting date) to declare that "the Court's victory over the Fourth Amendment is complete" (United States v. Leon).

But perhaps he spoke too soon. Allowing the government to conduct secret, mass surveillance - without a warrant, or indeed, any meaningful oversight whatsoever - affecting any and all citizens, would be the ultimate victory. The current court, packed with right-wing activists, might relish the opportunity to affirm an Act of Congress which so clearly and so finally annihilates that pesky old Fourth Amendment.

We would then have nothing left to hide. There's no point trying to keep secrets when surveillance cameras are inescapable, when our identification cards broadcast their data via RFID, when our cars are fitted with GPS gear, when our DNA is recorded, when business records can be obtained without a court order, and when any email memo or phone call may be monitored at will.

We would, as the Attorney General points out, achieve true freedom at last. ®