Civil Liberties Forum Demands End to Warrantless NSA Spying

6-12-06, 9:12 am



Why should you care if the government is spying you? If you aren’t talking to Al Qaeda on the telephone, why does it matter if the National Security Administration (NSA), the world’s largest data mining and eavesdropping spy agency, is without a warrant listening in on your telephone calls, reading your e-mails or collecting data about who you call, what books you buy from Amazon.com, or what hotel you stayed at on your last trip to Disney World?

These were questions addressed at an ACLU-sponsored town hall forum held in Ann Arbor, Michigan last Sunday on 'Spying, Secrecy and Presidential Power.' The panel included former Nixon White House Counsel John Dean, national security expert and author James Bamford, ACLU attorney Ann Beeson, and Ann Arbor resident and civil liberties activist Nazih Hassan. The event was attended by a capacity crowd of several hundred and webcast to viewers across the country.

James Bamford, author of Body of Secrets and a plaintiff in the pending case of , opened the proceedings by describing a little of the history of the NSA. According to him, the NSA is so secretive that until the scandal about its secret warrantless wiretapping and recent revelations that it had convinced telecommunications corporations like AT&T and Cingular to provide private information about their clients to the government, few people had even heard of it. Yet, Bamford notes, it is the largest spy agency in the world; it controls more intelligence than even the CIA.

Bamford also pointed out that it is so secretive that in the 1970s when President Nixon ordered it to eavesdrop on Americans he considered to be political opponents, especially antiwar protesters, he didn’t realize it had already been doing so for decades.

It wasn’t until 1975 when investigations by the Senate Church Committee, named for Idaho Senator Frank Church, discovered the extent to which the NSA had been violating 4th Amendment provisions against unreasonable search and seizure, including eavesdropping and reading written communications of members of Congress, did Congress act to restrain its power.

As a remedy, Congress passed the Foreign Intelligence Surveillance Act (FISA), which established a secret court system to which organizations like the NSA that sought to eavesdrop on or collect data about a suspect were required to request a warrant. This court was designed to protect national security secrets while obligating the government to uphold the 4th Amendment.

Bamford noted that the government has requested warrants from FISA courts more than 19,000 times and has been refused only five times in their 30-year history. The White House didn’t like these odds apparently. 'The Bush administration thought that standard was too onerous, and they thought they would simply bypass FISA,' he remarked.

'In this case,' Bamford said, 'I think what they are doing is very wrong.' A democracy, he added, is not supposed to work that way.

Bamford also criticized the partisan politics of the Republicans in Congress for refusing to uphold their Constitutional duty to oversee the actions of the President and to check his abuse of power. To remedy this, Bamford called for changing the party in power in Congress in November.

Describing the NSA spying scandal as a Constitutional crisis, ACLU attorney Ann Beeson put the spying issue into a broader context of the Bush administration’s abuse of executive powers.

Beeson, who is working on a number of lawsuits related to the PATRIOT Act and torture of detainees as well as , described the NSA spying scandal as part of a broad set of illegal White House policies. These include White House justifications of torture and abuse of prisoners at Abu Ghraib and other US prison camps, rendition, and illegal detentions and deportations of US residents because they appear to be from the Middle East. Beeson described this laundry list of presidential abuses as having 'nothing to do with what the framers intended for the executive when they wrote the Constitution.'

Citing the ease with which government agencies can obtain secret FISA warrants, Beeson said, 'it is ironic the President thought he had to go around FISA in order to do what he wanted.'

Beeson argued that the debate over the legality of NSA spying on Americans without warrants 'is not an abstract Constitutional debate. It is concretely harming.' She said that her clients in the case of are journalists, scholars, and lawyers. In each case, as revelations about NSA wiretapping were made public, her clients found they could no longer do their jobs effectively. Journalists could no longer speak with international sources who feared their conversations were not private. Lawyers who have to communicate with international clients could no longer do so with the full confidence of attorney-client privilege. They could not prepare cases without fearing that the government may be listening.

Beeson also cited the specific case of a scholarly client, Larry Diamond of the conservative Hoover Institute. Diamond alleges that his clients in the Middle East refuse to speak with him anymore because they fear the US government, using information collected by the NSA, may reveal information about them to their repressive governments.

Beeson stated that the Constitution is very clear. It does not give the President the authority to eavesdrop without a warrant – even during a time of war or emergency. She argued that the 1st and 4th Amendments explicitly protect speech and protect people from unwarranted search and seizure. The founders had fought a revolution against the British monarchy that claimed the right to break into people’s houses, seize their private papers, and read their mail at will. To end this tyranny, they wrote a Constitution that banned the executive branch from this kind of activity.

Beeson noted also that the Bush administration’s claim that the NSA spying program is a matter of national security is bogus. She pointed out that there is nothing secret about it. The President and his spokespersons have talked extensively about it in public. From what they have told us, she argued, we know enough about it to know that it is illegal.

Beeson urged Americans to take a stand on this issue and protect the Constitution. She added that without a Congress following through on its legal obligation to check the power of the President, the courts may be the only way to end the Constitutional crisis. She viewed suing telecommunications companies that cooperated with illegal spying for violations of privacy rights as another positive step.

Nazih Hassan, a local resident and activist with the Council on American Islamic Relations and a plaintiff in , described the effects of Bush administration policies in the so-called war on terror on the Arab American and American Muslim communities. Hassan said, 'These policies have destroyed any bridge between the Arab American and Muslim communities and the US government.'

Little trust or willingness to cooperate exists between the US government and Arab Americans and Muslims because of what the Bush administration has done. Essentially, Hassan said, the administration has targeted Muslims and Arab Americans for deportations and abuse, almost always without evidence. They have turned elaborate press conferences claiming victories in the war on terror into an art form, but usually later on we find out that cases were either fabricated or exaggerated.

Hassan noted personal knowledge of a local area resident targeted for deportation by the government, not because it has any evidence tying him to terrorism, but because he was a friend of former Ann Arbor Muslim cleric Rabih Haddad. Haddad was detained in 2001 by federal authorities and held for about four years without trial. The Justice Department claimed Haddad had ties to charities that supported terrorist activity. They never proved this or even officially charged him with it. He was simply deported for a minor immigration violation after languishing in a federal prison with limited access to lawyers or to his family. Haddad was only one of thousands in similar situations.

Hassan noted the hypocrisy of Congress’ swift response to defend the separation of powers after the FBI raided the office of a Louisiana representative, while refusing to hold a single hearing on the President’s attacks on the civil rights and liberties of the people. He described this silence on protecting the Constitution from very real dangers as 'mostly cowardly.'

Hassan, who says he grew up under a repressive regime in Lebanon before coming to the US 15 years ago, finds little difference between what the Bush administration is saying and doing now than what the government he grew up under did. He warned against allowing our democratic institutions to be eroded into dictatorship and urged Americans stand up and speak out against White House policies.

Former Nixon White House Counsel John Dean contended that people need to understand why they should care about the NSA spying without warrants. Perhaps they care more about who should be the next American Idol, he surmised. 'People don’t realize how easily our rights and liberties can slip away,' he said.

He cited his experience in the Nixon White House as a prime example of what can happen when the President abuses his power. He described White House claims of spying on Americans without warrants as a matter of national security as 'baloney.'

He also chastised Congress for failing to stop the program. 'Congress has become an aider and an abettor not a checker,' he remarked. 'It has become an extension of 1600 Pennsylvania Avenue.'

He contrasted this with past Congresses that routinely demanded accountability from the White House. During the Lyndon B. Johnson administration, for example, the Democratic-controlled Congress frequently frustrated Johnson by exercising its duty to oversee and check executive actions.

Dean also scoffed at the accusation leveled by White House spokespersons and Bush supporters that opposition to warrantless spying is the same as opposition to fighting terrorism. Dean said, 'We all want to fight terrorism.' But, we shouldn’t and do not need to wreck the Constitution to do it.

Kary Moss, executive director of the Michigan ACLU and moderator of the forum, urged all people to contact their congressional representatives and US Senators and tell them this issue is important. Congress needs to hear that we want them to act on their legal obligation to hold the administration accountable and to protect our Constitutional rights, she said.



--Joel Wendland is managing editor of Political Affairs and may be reached at