Another Milestone on the Road to Serfdom

BY Scott Horton

08/03/08 "Harpers" -- -- This weekend, the darkness continues to descend in Washington, the powers of the state continue to grow and the mechanisms of accountability rot away unused. Americans are focused on the selection of a new president. Many of them share the naïve assumption that on January 20, 2009, when a new leader takes the oath of office from the south steps of the Capitol Building, the Founders’ constitutional order will once more be set aright and the extra-constitutional excesses of the Bush years will be but a bad memory. But whoever is installed as the new guardian of presidential power will not likely part with many of the rights that Bush claimed and was allowed to use, unchallenged.

And this weekend, we should regard the three remaining candidates from a more skeptical predicate. This weekend, the curtain of tyranny descends further in Washington. The Bush regime, bolstered by a surging 17% public acceptance in one poll, moves more closely towards a façade of legality for its national surveillance state. It acknowledges its abuse of other legislation and will suffer no consequences for that abuse, and in a symbolic coup de grâce, Bush will veto the latest Congressional prohibition on torture–for indeed, torture is the very talisman of his unchecked rule and his arrogant indifference to the rule of law. And in the midst of this, where, this weekend, are the three presidential finalists? They busy themselves with the accumulation of delegates for their march on the White House. They will mutter fine sounding words on the campaign trail—sentences will glimmer with “freedom” and “liberty”—but they will offer no action that shows those words have content.

The FISA Farce
In 2006, a Democratic Congress was elected with a mandate to hold Bush’s excesses in check—indeed to roll many of them back. But this, it appears, was little more than campaign sloganeering. When it comes to the gravest challenges, the Democratic leadership knows only surrender. Here is Glenn Greenwald’s glance behind the scenes at the planning of the Democratic leadership:

The current draft does not contain telecom immunity (solely for temporary strategic reasons — see below), but incorporates every substantive warrantless surveillance provision of the Rockefeller/Cheney bill passed by the Senate, with several small and worthless exceptions that they’ll try to sell to what they obviously think is their stupid base as some vital “concessions”:

-The House bill has a 4 year-sunset provision rather than the Senate’s 6 years;

-It provides for an audit by the DOJ’s Inspector General of the “Terrorist Surveillance Program” (the only change that I would describe as something other than worthless);

-It contains a provision stating that the bill is the “exclusive means” by which the President can conduct electronic surveillance (the same provision that FISA has now which the President violated, and which the Senate refused to insert into its bill); Nancy Pelosi was trying just yesterday, lamely, to sell this provision as some sort of vital safeguard;

-The bill mandates some minimal re-review of some of the provisions in 2009; and,

-It contains some mild changes to some of the definitions (the specifics of which I don’t know).

The plan of the House leadership is to pass this specific bill in the House, send it to the Senate (where telecom immunity will be added in by the same bipartisan Senate faction that already voted for immunity), have it go back to the House for an up-or-down-vote on the House-bill-plus-telecom-immunity (which will pass with the support of the Blue Dogs), and then compliantly sent on to a happy and satisfied President, who will sign the bill that he demanded.

The bill was drafted with the participation of, and input from, Nancy Pelosi and Silvestre Reyes, at the very least. Reyes, of course, was last seen on CNN meekly pleading with Wolf Blitzer to give him a few more days to come up with a capitulation plan, and is now making good on his commitment to Blitzer (while violating all of the tough, defiant statements he had been making when pretending to take a stand against warrantless eavesdropping and for the rule of law).

So the bill is not far removed from the White House’s request, and even the telecom immunity provision will emerge through some carefully choreographed maneuvers (the main object will be, of course, to obscure exactly how it got into the legislation—the Democratic leadership is conscious of the strong grassroots opposition to this provision, and keen to avoid a backlash. Not, of course, that this will do more than slow them down a few weeks in catering to the interests of their telecom friends.)

And all of this occurs as another engineer has come forward to blow the whistle on the lawless surveillance of telecommunications by the Bush National Surveillance State.

Babak Pasdar, a computer security consultant, has gone public about his discovery of a mysterious “Quantico Circuit” while working for an unnamed major wireless carrier. Pasdar believes that this circuit gives the U.S. government direct, unfettered access to customers voice calls and data packets. These claims echo the disclosures from retired AT&T technician Mark Klein, who has described a “secret room” in an AT&T facility.

The name of the wireless carrier that collaborated in the installation of the “Quantico Circuit,” allowing the Bush Administration to spy on every phone conversation, text message and other communications it transmits, with no warrants or prior approval? Verizon.

Michael McConnell will of course insist that the intelligence community is looking only at foreign communications involving suspect terrorists. And that statement is a lie. In fact the technology employed allows the indiscriminate filtering of all communications of all types. And as to what portion is actually examined with any particularity, on that particular point, we’re told “trust us.” But why? I suggest we repose our trust elsewhere, namely: in the Constitution.

Surveillance is not outlawed. But it is bound to a system of constraints and checks. The Administration must justify its targets and must be subject to the oversight of a magistrate. That is what the Founding Fathers provided. And there is no reason to move from this system; what has transpired over the last six years provides only more evidence of its wisdom.

The NSL Scam
One of the extraordinary powers expanded in the USA PATRIOT Act relates to a device called a “National Security Letter” by which the Justice Department was effectively granted the power to issue its own warrants, unchecked by courts, cloaked by immense secrecy, and divorced from the duty to account. It was a formula for abuse, and indeed, the abuse has been rampant. First, Attorney General Ashcroft insisted that secret warrants had only ever been used a handful of times, and never with respect to libraries. That, of course, was untrue. Ashcroft knew even as he uttered those words that the number of uses had stretched into the thousands. He was counting on a Congress that no longer took its oversight function seriously, and he was right.

Then, FBI Director Robert Mueller came forward to correct Ashcroft’s “mistake” and to insist that the problems had since been cleaned up with internal accountability mechanisms. That also sounded like a silver-tongued lie.

And on Thursday, Mueller again came before the Senate Judiciary Committee, and again acknowledged that abuse was widespread. Here’s how the Washington Examiner reported it:

The FBI improperly used national security letters in 2006 to obtain personal data on Americans during terror and spy investigations, Director Robert Mueller said Wednesday. Mueller told the Senate Judiciary Committee that the privacy breach by FBI agents and lawyers occurred a year before the bureau enacted sweeping new reforms to prevent future lapses.

Details on the abuses will be outlined in the coming days in a report by the Justice Department’s inspector general. The report is a follow-up to an audit by the inspector general a year ago that found the FBI demanded personal data on people from banks, telephone and Internet providers and credit bureaus without official authorization and in non-emergency circumstances between 2003 and 2005.

Mueller, noting senators’ concerns about Americans’ civil and privacy rights, said the new report “will identify issues similar to those in the report issued last March.” The similarities, he said, are because the time period of the two studies “predates the reforms we now have in place.” He added: “We are committed to ensuring that we not only get this right, but maintain the vital trust of the American people.”

Mueller offered no additional details. Several other Justice Department and FBI officials familiar with this year’s findings have said privately the upcoming report will show the letters were wrongly used at a similar rate as during the previous three years.

So, more promises unkept. The abuse festers, and indeed, there is not even a down-turn in the rate of abuse. And how do the argus-eyed guardians of the public weal in the Senate Judiciary Committee react to all of this? Condemnation? Demands for new hearings? No. They react with total silence. They don’t even venture a few extra questions.

The Torture President
And all this simply clears the path for Bush’s shining act of glory set for later today. He will veto the intelligence authorizations act of 2008 because it clarifies, for the third or fourth time now, that acts of torture are a violation of the law. But George W. Bush is the law, and he will not hear any differently from this Congress. Indeed, Bush’s claim to be the law is manifested in one thing above all others, and that is his power to torture. By defending and upholding this right, Bush shows that unlike generations of predecessors in the White House, he is King. He sets the law, and his will determines how it will be enforced and against whom. That is his own, very personal vision of “justice,” measured in terms of personal prerogative and power. Torture is the measure and definition of his authority as a President with monarchical pretense.

So Bush will veto the latest anti-torture legislation, and it will have no effect. Or rather, his veto will be cited as yet another instance in which his personal will triumphs over the Law.

The curtain continues to fall over American democracy. Americans understandably are sickened by the tragi-comedy that spreads itself across this stage. But their faith in another presidential election and another leader is misplaced. They need to reserve their faith not for the new, but for the old: for the constitutional model that the Founders left. It needs to be forced to work. And all those who undermine it must be held to account. That includes the should-be watchdogs, who slobbering at the prospect of a few drug-drenched sirloins hurled their way, are failing in their duty to protect their true masters: the American people.

We live in the age of the Great Betrayal, in an age in which too few are willing to state the obvious. There is still time to check the progress of tyrannical power, but the hour grows late, and the sounds of alarm no longer seem to register with a somnolent populace

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