One Nation under Spy

(with usurped liberty and injustice for all) Already for about a month now Americans have known that the National Security Administration (NSA) has been spy on them without warrant since early 2001 and with the President's secret approval since 2002, yet the shock is still fresh.

This is after all a bit revolutionary, even for a government that sent the CIA carousing around South American and the Middle East for decades, staging coups, training paramilitary forces, and financing shadowy dissident groups as the misinformed and ill-prepared inklings of "national interests" demanded. This is different in the same way 9/11 or the Padilla case were different: this is a direct attack on American citizens and their basic rights. September 11 brought the attack by foreigners directly onto American land; the abrogation of an American citizen's habeas corpus, one of the most fundamental rights protected by the Constitution, was another undistinguished first.

The Administration naturally claims that spying on American citizens, without Congressional approval or apprisal, does not break the law because, well, their lawyers told them so. Unfortunately for them, poor legal advice does not constitute a defense. And although Bush describes his authorization as a necessary national security response to the terrorist attacks, some evidence shows that he sanctioned spying on citizens before 9/11.

Mr. Bush and his cronies have left little for conspiracy theorists left to play with, now that he has made international headlines out of the worst they could imagine: for starters, torture by US defense arms, a string of political scandals from Rove to Abramoff, and unmonitored spying on citizens. I admit I've never read George Orwell's classic argument for skeptically restraining and monitoring government control, 1984, but fiction really does pale in comparison to today's news.

For Mr. Bush, et. al., obeying the law is a process of segmenting thought between sacred rules to be enforce absolutely and unprecedented exceptional circumstances that require an unconditional suspention of sacred oaths for temporary (though indefinitely limited) response.

Echoing a letter by a dozen foremost constitutional scholars, former CIA General Counsel, Jeffrey Smith, wrote, "It is not credible that the 2001 authorization to use force provides authority for the president to ignore the requirements of FISA." He added that if the unwarranted spying on Americans was deemed legal "it would be a dramatic expansion of presidential authority affecting the rights of our fellow citizens that undermines the checks and balances of our system, which lie at the very heart of the Constitution."

For more on the NSA's policies on electronic surveillance and the debate on domestic eavesdropping, you can peruse declassified documents at the NSA Archive, which recently republished specific documents in response to revelations about the Bush Administration's warantless spying.