Nixon's Wet Dream

One of the most important aspects of this whole FISA mess has been largely overlooked. That is that it is not just about privacy. Or principle.

It is about political power.

The power of the Executive to spy on Americans is an incredible political weapon. Our Founders understood this even back in the 18th Century - information is power.

And if one has any doubt about the dangers of such power, one has to look no further than the presidency of Richard Nixon. There's a great scene in the movie All the President's Men where Woodward finally gets Deepthroat to talk. It is not, as far as I know, taken from an exact quote. But it is an accurate depiction of what Woodward learned:

Woodward: I'm tired of your chickenshit games. I need to know what you know.

Deepthroat: ... Mitchell [Nixon's attorney general] started doing covert stuff before anyone else. The list is longer than anyone can imagine. It involves the entire US intelligence community. FBI, CIA, Justice. It's incredible.

The cover up had little to do with Watergate. It was mainly to protect the covert operations. It leads everywhere. Get out your notebook. There's more.

What Woodward and Bernstein discovered not that long ago was that the entire intelligence establishment was being used as a political weapon against Democrats, the Democratic party, whistleblowers like Danial Ellsberg, and anti-war activists. just the way we now know the Bush administration has used the Justice Department. (A study found that Bush's Justice Dept. investigated seven (7) times as many Democratic officials as Republican officials.)

For those who may not recall, the Watergate investigation began when some CIA men, working for the Nixon reelection campaign, were caught trying to bug the headquarters of the Democratic National Committee. Do Democrats in Congress really have such short memories?

The system, for example, put in place in AT&T's secret Room 641A, where AT&T's internet traffic is vacuumed in for mass surveillance is a delightful playground for malicious, politically motivated spies.

And by giving the authority to the president's men, without serious oversight or accountability, we are guaranteeing a repeat of the Nixon years or, probably, much worse.

What can you do with your political enemies phone calls, private information, or emails? What did Nixon's men do? They used them for opposition research. And there are already strong indications that Bush's henchmen have done the same.

As reported at by Jeff Stein at CQ:

U.S. intelligence tapped the telephone calls of Lawrence Wright, the Pulitzer Prize-winning author of The Looming Tower, starting in 2002.

This may well be news to many people, even though Wright revealed the taps himself in a sprawling, 15,000-word article on electronic surveillance in the Jan. 21 edition of The New Yorker magazine.

Perhaps because the article was not available online it lacked the link-juice to propel it into a frenzy over the "domestic spying" on the Web, the cable news shows and leading American newspapers.

As far as I can tell, only Pam Hess of the Associated Press picked up on Wright’s confrontation with spy chief Michael McConnell over the phone taps, and no major paper ran it.

You may not care much at the thought of your phone being tapped. Innocent people usually don't. But I can't imagine anyone passionate about politics who is okay with president Bush, or a president McCain, having the freedom to tap the phones of journalists, progressive activists, or even Democratic politicians, without detection or oversight.

This is what is at stake with this FISA bill. As has been pointed out repeatedly, even without the telecom immunity, this bill actually diminishes the judicial oversight that was put in place because of the abuses of the Nixon administration.

From the ACLU:

H.R. 6304, THE FISA AMENDMENTS ACT OF 2008 (6/19/2008)

The ACLU recommends a no vote on H.R. 6304, which grants sweeping wiretapping authority to the government with little court oversight and ensures the dismissal of all pending cases against the telecommunication companies. Most importantly:

• H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.

• H.R. 6304 permits only minimal court oversight. The Foreign Intelligence Surveillance Court (FISA Court) only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what or where will actually be tapped.

• H.R. 6304 contains a general ban on reverse targeting. However, it lacks stronger language that was contained in prior House bills that included clear statutory directives about when the government should return to the FISA court and obtain an individualized order if it wants to continue listening to a US person’s communications.

• H.R.6304 contains an "exigent" circumstance loophole that thwarts the prior judicial review requirement. The bill permits the government to start a spying program and wait to go to court for up to 7 days every time "intelligence important to the national security of the US may be lost or not timely acquired." By definition, court applications take time and will delay the collection of information. It is highly unlikely there is a situation where this exception doesn’t swallow the rule.

• H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime.

• H.R. 6304 ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.

• Members of Congress not on Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director of National Intelligence, and Inspector General.